(cite as: 543 u.s. 405, 125 s.ct. 834) [1] searches and...

Supreme Court of the United StatesILLINOIS, Petitioner,

v.Roy I. CABALLES.

No. 03-923.

Argued Nov. 10, 2004.Decided Jan. 24, 2005.

Background: Defendant was convicted, followingbench trial in the Circuit Court, La Salle County, H.Chris Ryan, Jr., J., of cannabis trafficking, and heappealed from denial of motion to suppress evid-ence discovered during traffic stop of vehicle hewas driving. The Illinois Appellate Court affirmed.Granting petition for leave to appeal, the IllinoisSupreme Court, Kilbride, J., 207 Ill.2d 504, 280Ill.Dec. 277, 802 N.E.2d 202, reversed. Certiorariwas granted.

Holding: The United States Supreme Court, JusticeStevens, held that, where lawful traffic stop was notextended beyond time necessary to issue warningticket and to conduct ordinary inquiries incident tosuch a stop, another officer's arrival at scene whilestop was in progress and use of narcotics-detectiondog to sniff around exterior of motorist's vehicledid not rise to level of cognizable infringement onmotorist's Fourth Amendment rights, such as wouldhave to be supported by some reasonable, articul-able suspicion.

Vacated and remanded.

Justice Souter dissented and filed opinion.

Justice Ginsburg dissented and filed opinion, inwhich Justice Souter joined.

Chief Justice Rehnquist took no part in the decisionof the case.

West Headnotes

[1] Searches and Seizures 349 53.1

349 Searches and Seizures349I In General

349k53 Scope, Conduct, and Duration ofWarrantless Search

349k53.1 k. In General. Most Cited CasesSeizure that is lawful at its inception can violate theFourth Amendment if its manner of execution un-reasonably infringes interests protected by the Con-stitution. U.S.C.A. Const.Amend. 4.

[2] Automobiles 48A 349(17)

48A Automobiles48AVII Offenses48AVII(B) Prosecution

48Ak349 Arrest, Stop, or Inquiry; Bail orDeposit

48Ak349(14) Conduct of Arrest, Stop,or Inquiry

48Ak349(17) k. Detention, andLength and Character Thereof. Most Cited CasesSeizure that is justified solely by interest in issuinga warning ticket to driver can become unlawful, inviolation of Fourth Amendment, if it is prolongedbeyond time reasonably required to complete thatmission. U.S.C.A. Const.Amend. 4.


349 Searches and Seizures349I In General349k13 What Constitutes Search or Seizure349k13.1 k. In General. Most Cited Cases

Official conduct that does not compromise any le-gitimate interest in privacy is not “search” subjectto the Fourth Amendment. U.S.C.A. Const.Amend.

125 S.Ct. 834 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842, 73 USLW 4111, 05 Cal. Daily Op. Serv. 648, 2005 Daily JournalD.A.R. 849, 18 Fla. L. Weekly Fed. S 100(Cite as: 543 U.S. 405, 125 S.Ct. 834)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

4.

[4] Searches and Seizures 349 26

349 Searches and Seizures349I In General349k25 Persons, Places and Things Protected

349k26 k. Expectation of Privacy. MostCited CasesAny interest that party may have in possessing con-traband cannot be deemed “legitimate,” and gov-ernment conduct that reveals only the possession ofcontraband compromises no legitimate privacy in-terest protected by the Fourth Amendment.U.S.C.A. Const.Amend. 4.





48Ak349(18) k. Inquiry; License,Registration, or Warrant Checks. Most Cited Cases

Automobiles 48A 349.5(7)


48Ak349.5 Search or Seizure Consequentto Arrest, Stop or Inquiry

48Ak349.5(5) Object, Product, Scope,and Conduct of Search or Inspection

48Ak349.5(7) k. Drugs and Narcot-ics. Most Cited CasesUse of well-trained narcotics-detection dog, onethat does not expose noncontraband items that oth-erwise would remain hidden from public view, dur-ing lawful traffic stop generally does not implicatelegitimate privacy interests protected by the FourthAmendment. U.S.C.A. Const.Amend. 4.





48Ak349(17) k. Detention, andLength and Character Thereof. Most Cited Cases

Automobiles 48A 349(18)




48Ak349(18) k. Inquiry; License,Registration, or Warrant Checks. Most Cited CasesWhere lawful traffic stop was not extended beyondtime necessary to issue warning ticket and to con-duct ordinary inquiries incident to such a stop, an-other officer's arrival at scene while stop was inprogress and use of narcotics-detection dog to sniffaround exterior of motorist's vehicle did not rise tolevel of cognizable infringement on motorist'sFourth Amendment rights, such as would have tobe supported by some reasonable, articulable suspi-cion. U.S.C.A. Const.Amend. 4.





48Ak349(18) k. Inquiry; License,



Registration, or Warrant Checks. Most Cited Cases

Automobiles 48A 349.5(7)


48Ak349.5 Search or Seizure Consequentto Arrest, Stop or Inquiry

48Ak349.5(5) Object, Product, Scope,and Conduct of Search or Inspection

48Ak349.5(7) k. Drugs and Narcot-ics. Most Cited CasesDog sniff conducted during lawful traffic stop, thatreveals no information other than location of con-traband that no individual has any right to possess,does not violate Fourth Amendment. U.S.C.A.Const.Amend. 4.

**835 *405 Syllabus FN*

FN* The syllabus constitutes no part of theopinion of the Court but has been preparedby the Reporter of Decisions for the con-venience of the reader. See United States v.Detroit Timber & Lumber Co., 200 U.S.321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

After an Illinois state trooper stopped respondentfor speeding and radioed in, a second trooper, over-hearing the transmission, drove to the scene withhis narcotics-detection dog and walked the dogaround **836 respondent's car while the first troop-er wrote respondent a warning ticket. When the dogalerted at respondent's trunk, the officers searchedthe trunk, found marijuana, and arrested respond-ent. At respondent's drug trial, the court denied hismotion to suppress the seized evidence, holding,inter alia, that the dog's alerting provided sufficientprobable cause to conduct the search. Respondentwas convicted, but the Illinois Supreme Court re-versed, finding that because there were no specificand articulable facts to suggest drug activity, use ofthe dog unjustifiably enlarged a routine traffic stop

into a drug investigation.

Held: A dog sniff conducted during a concededlylawful traffic stop that reveals no information otherthan the location of a substance that no individualhas any right to possess does not violate the FourthAmendment. Pp. 837-838.

207 Ill.2d 504, 280 Ill.Dec. 277, 802 N.E.2d 202,vacated and remanded.

STEVENS, J., delivered the opinion of the Court,in which O'CONNOR, SCALIA, KENNEDY,THOMAS, and BREYER, JJ., joined. SOUTER, J.,filed a dissenting opinion, post, p. 838. GINS-BURG, J., filed a dissenting opinion, in whichSOUTER, J., joined, post, p. 843. REHNQUIST, C.J., took no part in the decision of the case.Christopher A. Wray, for the United States asamicus curiae, by special leave of the Court, sup-porting the petitioner.

Lisa Madigan, Attorney General of Illinois, GaryFeinerman, Counsel of Record, Solicitor General,Linda D. Woloshin, Mary Fleming, Assistant Attor-neys General, Chicago, IL, for petitioner.

Ralph E. Meczyk, Counsel of Record, Lawrence H.Hyman, Chicago, IL, for respondent.

For U.S. Supreme Court briefs, see:2004 WL1530261 (Pet.Brief)2004 WL 2097415(Resp.Brief)2004 WL 2398459 (Reply.Brief)

Justice STEVENS delivered the opinion of theCourt.

*406 Illinois State Trooper Daniel Gillette stoppedrespondent for speeding on an interstate highway.When Gillette radioed the police dispatcher to re-port the stop, a second trooper, Craig Graham, amember of the Illinois State Police Drug Interdic-tion Team, overheard the transmission and immedi-ately headed for the scene with his narcotics-detec-tion dog. When they arrived, respondent's car was



on the shoulder of the road and respondent was inGillette's vehicle. While Gillette was in the processof writing a warning ticket, Graham walked his dogaround respondent's car. The dog alerted at thetrunk. Based on that alert, the officers searched thetrunk, found marijuana, and arrested respondent.The entire incident lasted less than 10 minutes.

*407 Respondent was convicted of a narcotics of-fense and sentenced to 12 years' imprisonment anda $256,136 fine. The trial judge denied his motionto suppress the seized evidence and to quash his ar-rest. He held that the officers had not unnecessarilyprolonged the stop and that the dog alert was suffi-ciently reliable to provide probable cause to con-duct the search. Although the Appellate Court af-firmed, the Illinois Supreme Court reversed, con-cluding that because the canine sniff was performedwithout any “ ‘specific and articulable facts' ” tosuggest drug activity, the use of the dog“unjustifiably **837 enlarg[ed] the scope of aroutine traffic stop into a drug investigation.” 207Ill.2d 504, 510, 280 Ill.Dec. 277, 802 N.E.2d 202,205 (2003).

The question on which we granted certiorari, 541U.S. 972, 124 S.Ct. 1875, 158 L.Ed.2d 466 (2004),is narrow: “Whether the Fourth Amendment re-quires reasonable, articulable suspicion to justifyusing a drug-detection dog to sniff a vehicle duringa legitimate traffic stop.” Pet. for Cert. i. Thus, weproceed on the assumption that the officer conduct-ing the dog sniff had no information about respond-ent except that he had been stopped for speeding;accordingly, we have omitted any reference to factsabout respondent that might have triggered amodicum of suspicion.

[1][2] Here, the initial seizure of respondent whenhe was stopped on the highway was based on prob-able cause and was concededly lawful. It is never-theless clear that a seizure that is lawful at its in-ception can violate the Fourth Amendment if itsmanner of execution unreasonably infringes in-

terests protected by the Constitution. United Statesv. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80L.Ed.2d 85 (1984). A seizure that is justified solelyby the interest in issuing a warning ticket to thedriver can become unlawful if it is prolonged bey-ond the time reasonably required to complete thatmission. In an earlier case involving a dog sniff thatoccurred during an unreasonably prolonged trafficstop, the Illinois Supreme Court held that use of thedog and the subsequent discovery *408 of contra-band were the product of an unconstitutionalseizure. People v. Cox, 202 Ill.2d 462, 270 Ill.Dec.81, 782 N.E.2d 275 (2002). We may assume that asimilar result would be warranted in this case if thedog sniff had been conducted while respondent wasbeing unlawfully detained.

In the state-court proceedings, however, the judgescarefully reviewed the details of Officer Gillette'sconversations with respondent and the precise tim-ing of his radio transmissions to the dispatcher todetermine whether he had improperly extended theduration of the stop to enable the dog sniff to occur.We have not recounted those details because we ac-cept the state court's conclusion that the duration ofthe stop in this case was entirely justified by thetraffic offense and the ordinary inquiries incident tosuch a stop.

Despite this conclusion, the Illinois Supreme Courtheld that the initially lawful traffic stop became anunlawful seizure solely as a result of the caninesniff that occurred outside respondent's stopped car.That is, the court characterized the dog sniff as thecause rather than the consequence of a constitution-al violation. In its view, the use of the dog conver-ted the citizen-police encounter from a lawfultraffic stop into a drug investigation, and becausethe shift in purpose was not supported by any reas-onable suspicion that respondent possessed narcot-ics, it was unlawful. In our view, conducting a dogsniff would not change the character of a trafficstop that is lawful at its inception and otherwise ex-ecuted in a reasonable manner, unless the dog sniff



itself infringed respondent's constitutionally protec-ted interest in privacy. Our cases hold that it didnot.

[3][4] Official conduct that does not “compromiseany legitimate interest in privacy” is not a searchsubject to the Fourth Amendment. Jacobsen, 466U.S., at 123, 104 S.Ct. 1652. We have held that anyinterest in possessing contraband cannot be deemed“legitimate,” and thus, governmental conduct thatonly reveals the possession of contraband“compromises no legitimate privacy interest.” Ibid.This is because the expectation*409 “that certainfacts will not come to the attention of the authorit-ies” is not the same as an interest **838 in “privacythat society is prepared to consider reasonable.” Id.,at 122, 104 S.Ct. 1652 (punctuation omitted). InUnited States v. Place, 462 U.S. 696, 103 S.Ct.2637, 77 L.Ed.2d 110 (1983), we treated a caninesniff by a well-trained narcotics-detection dog as“sui generis ” because it “discloses only the pres-ence or absence of narcotics, a contraband item.”Id., at 707, 103 S.Ct. 2637; see also Indianapolis v.Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148L.Ed.2d 333 (2000). Respondent likewise concedesthat “drug sniffs are designed, and if properly con-ducted are generally likely, to reveal only the pres-ence of contraband.” Brief for Respondent 17. Al-though respondent argues that the error rates, par-ticularly the existence of false positives, call intoquestion the premise that drug-detection dogs alertonly to contraband, the record contains no evidenceor findings that support his argument. Moreover, re-spondent does not suggest that an erroneous alert,in and of itself, reveals any legitimate private in-formation, and, in this case, the trial judge foundthat the dog sniff was sufficiently reliable to estab-lish probable cause to conduct a full-blown searchof the trunk.

[5][6] Accordingly, the use of a well-trained narcot-ics-detection dog-one that “does not expose non-contraband items that otherwise would remain hid-den from public view,” Place, 462 U.S., at 707, 103

S.Ct. 2637-during a lawful traffic stop, generallydoes not implicate legitimate privacy interests. Inthis case, the dog sniff was performed on the exteri-or of respondent's car while he was lawfully seizedfor a traffic violation. Any intrusion on respond-ent's privacy expectations does not rise to the levelof a constitutionally cognizable infringement.

[7] This conclusion is entirely consistent with ourrecent decision that the use of a thermal-imagingdevice to detect the growth of marijuana in a homeconstituted an unlawful search. Kyllo v. UnitedStates, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d94 (2001). Critical to that decision was the fact thatthe device was capable of detecting lawful activity-in that case, intimate details in a *410 home, suchas “at what hour each night the lady of the housetakes her daily sauna and bath.” Id., at 38, 121 S.Ct.2038. The legitimate expectation that informationabout perfectly lawful activity will remain privateis categorically distinguishable from respondent'shopes or expectations concerning the nondetectionof contraband in the trunk of his car. A dog sniffconducted during a concededly lawful traffic stopthat reveals no information other than the locationof a substance that no individual has any right topossess does not violate the Fourth Amendment.

The judgment of the Illinois Supreme Court is va-cated, and the case is remanded for further proceed-ings not inconsistent with this opinion.

It is so ordered.

THE CHIEF JUSTICE took no part in the decisionof this case.

Justice SOUTER, dissenting.I would hold that using the dog for the purposes ofdetermining the presence of marijuana in the car'strunk was a search unauthorized as an incident ofthe speeding stop and unjustified on any otherground. I would accordingly affirm the judgment ofthe Supreme Court of Illinois, and I respectfully



dissent.

In United States v. Place, 462 U.S. 696, 103 S.Ct.2637, 77 L.Ed.2d 110 (1983), we categorized thesniff of the narcotics-seeking dog as “sui generis”under the Fourth Amendment and held it was not asearch. Id., at 707, 103 S.Ct. 2637. The classifica-tion rests not only upon the limited nature **839 ofthe intrusion, but on a further premise that experi-ence has shown to be untenable, the assumptionthat trained sniffing dogs do not err. What we havelearned about the fallibility of dogs in the yearssince Place was decided would itself be reason tocall for reconsidering Place's decision against treat-ing the intentional use of a trained dog as a search.The portent of this very case, however, adds insist-ence*411 to the call, for an uncritical adherence toPlace would render the Fourth Amendment indif-ferent to suspicionless and indiscriminate sweeps ofcars in parking garages and pedestrians on side-walks; if a sniff is not preceded by a seizure subjectto Fourth Amendment notice, it escapes FourthAmendment review entirely unless it is treated as asearch. We should not wait for these developmentsto occur before rethinking Place's analysis, whichinvites such untoward consequences.FN1

FN1. I also join Justice GINSBURG's dis-sent, post, p. 843. Without directly reex-amining the soundness of the Court's ana-lysis of government dog sniffs in Place,she demonstrates that investigation into amatter beyond the subject of the trafficstop here offends the rule in Terry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968), the analysis I, too, adopt.

At the heart both of Place and the Court's opiniontoday is the proposition that sniffs by a trained dogare sui generis because a reaction by the dog in go-ing alert is a response to nothing but the presence ofcontraband.FN2 See ibid. (“[T]he sniff disclosesonly the presence or absence of narcotics, a contra-band item”); ante, at 838 (assuming that “a canine

sniff by a well-trained narcotics-detection dog” willonly reveal “ ‘the presence or absence of narcotics,a contraband item’ ” (quoting Place, supra, at 707,103 S.Ct. 2637)). Hence, the argument goes, be-cause the sniff can only reveal the presence ofitems devoid of any legal use, the sniff “does notimplicate legitimate privacy interests” and is not tobe treated as a search. Ante, at 838.

FN2. Another proffered justification forsui generis status is that a dog sniff is aparticularly nonintrusive procedure. UnitedStates v. Place, 462 U.S. 696, 707, 103S.Ct. 2637, 77 L.Ed.2d 110 (1983). I agreewith Justice GINSBURG that the introduc-tion of a dog to a traffic stop (let alone anencounter with someone walking down thestreet) can in fact be quite intrusive. Post,at 845.

The infallible dog, however, is a creature of legalfiction. Although the Supreme Court of Illinois didnot get into the sniffing averages of drug dogs, theirsupposed infallibility is belied by judicial opinionsdescribing well-trained animals sniffing and alert-ing with less than perfect accuracy, whether *412owing to errors by their handlers, the limitations ofthe dogs themselves, or even the pervasive contam-ination of currency by cocaine. See, e.g., UnitedStates v. Kennedy, 131 F.3d 1371, 1378 (C.A.101997) (describing a dog that had a 71% accuracyrate); United States v. Scarborough, 128 F.3d 1373,1378, n. 3 (C.A.10 1997) (describing a dog that er-roneously alerted 4 times out of 19 while workingfor the postal service and 8% of the time over itsentire career); United States v. Limares, 269 F.3d794, 797 (C.A.7 2001) (accepting as reliable a dogthat gave false positives between 7% and 38% ofthe time); Laime v. State, 347 Ark. 142, 159, 60S.W.3d 464, 476 (2001) (speaking of a dog thatmade between 10 and 50 errors); United States v.$242,484.00, 351 F.3d 499, 511 (C.A.11 2003)(noting that because as much as 80% of all currencyin circulation contains drug residue, a dog alert “is



of little value”), vacated on other grounds by re-hearing en banc, 357 F.3d 1225 (C.A.11 2004);United States v. Carr, 25 F.3d 1194, 1214-1217(C.A.3 1994) (Becker, J., concurring in part anddissenting in part) (“[A] **840 substantial portionof United States currency ... is tainted with suffi-cient traces of controlled substances to cause atrained canine to alert to their presence”). Indeed, astudy cited by Illinois in this case for the proposi-tion that dog sniffs are “generally reliable” showsthat dogs in artificial testing situations return falsepositives anywhere from 12.5% to 60% of the time,depending on the length of the search. See ReplyBrief for Petitioner 13; Federal Aviation Admin.,K. Garner et al., Duty Cycle of the Detector Dog: ABaseline Study 12 (Apr.2001) (prepared by AuburnU. Inst. for Biological Detection Systems). In prac-tical terms, the evidence is clear that the dog thatalerts hundreds of times will be wrong dozens oftimes.

Once the dog's fallibility is recognized, however,that ends the justification claimed in Place fortreating the sniff as sui generis under the FourthAmendment: the sniff alert does not necessarily sig-nal hidden contraband, and opening the container orenclosed space whose emanations the dog has *413sensed will not necessarily reveal contraband or anyother evidence of crime. This is not, of course, todeny that a dog's reaction may provide reasonablesuspicion, or probable cause, to search the contain-er or enclosure; the Fourth Amendment does notdemand certainty of success to justify a search forevidence or contraband. The point is simply that thesniff and alert cannot claim the certainty that Placeassumed, both in treating the deliberate use of sniff-ing dogs as sui generis and then taking that charac-terization as a reason to say they are not searchessubject to Fourth Amendment scrutiny. And whenthat aura of uniqueness disappears, there is no basisin Place's reasoning, and no good reason otherwise,to ignore the actual function that dog sniffs per-form. They are conducted to obtain information

about the contents of private spaces beyond any-thing that human senses could perceive, even whenconventionally enhanced. The information is notprovided by independent third parties beyond thereach of constitutional limitations, but gathered bythe government's own officers in order to justifysearches of the traditional sort, which may or maynot reveal evidence of crime but will disclose any-thing meant to be kept private in the area searched.Thus in practice the government's use of a trainednarcotics dog functions as a limited search to revealundisclosed facts about private enclosures, to beused to justify a further and complete search of theenclosed area. And given the fallibility of the dog,the sniff is the first step in a process that may dis-close “intimate details” without revealing contra-band, just as a thermal-imaging device might do, asdescribed in Kyllo v. United States, 533 U.S. 27,121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).FN3

FN3. Kyllo was concerned with whether asearch occurred when the police used athermal-imaging device on a house to de-tect heat emanations associated with high-powered marijuana-growing lamps. In con-cluding that using the device was a search,the Court stressed that the “Government[may not] us[e] a device ... to explore de-tails of the home that would previouslyhave been unknowable without physical in-trusion.” 533 U.S., at 40, 121 S.Ct. 2038.Any difference between the dwelling inKyllo and the trunk of the car here may goto the issue of the reasonableness of the re-spective searches, but it has no bearing onthe question of search or no search. Nor isit significant that Kyllo's imaging devicewould disclose personal details immedi-ately, whereas they would be revealed onlyin the further step of opening the enclosedspace following the dog's alert reaction; inpractical terms the same values protectedby the Fourth Amendment are at stake in



each case. The justifications required bythe Fourth Amendment may or may notdiffer as between the two practices, but ifconstitutional scrutiny is in order for theimager, it is in order for the dog.

**841 *414 It makes sense, then, to treat a sniff asthe search that it amounts to in practice, and to relyon the body of our Fourth Amendment cases, in-cluding Kyllo, in deciding whether such a search isreasonable. As a general proposition, using a dog tosniff for drugs is subject to the rule that the objectof enforcing criminal laws does not, without more,justify suspicionless Fourth Amendment intrusions.See Indianapolis v. Edmond, 531 U.S. 32, 41-42,121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Since thepolice claim to have had no particular suspicionthat Caballes was violating any drug law, FN4 thissniff search must stand or fall on its being ancillaryto the traffic stop that led up to it. It is true that thepolice had probable cause to stop the car for an of-fense committed in the officer's presence, whichCaballes concedes could have justified his arrest.See Brief for Respondent 31. There is no occasionto consider authority incident to arrest, however,see Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484,142 L.Ed.2d 492 (1998), for the police did nothingmore than detain Caballes long enough to check hisrecord and write a ticket. As a consequence, thereasonableness of the search must be assessed in re-lation to the actual delay the police chose to im-pose, and as Justice GINSBURG points out in heropinion, post, at 844, the Fourth Amendment con-sequences of stopping for a traffic citation aresettled law.

FN4. Despite the remarkable fact that thepolice pulled over a car for going 71 milesan hour on I-80, the State maintains thatexcessive speed was the only reason forthe stop, and the case comes to us on thatassumption.

*415 In Berkemer v. McCarty, 468 U.S. 420,

439-440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984),followed in Knowles, supra, at 117, 119 S.Ct. 484,we held that the analogue of the common trafficstop was the limited detention for investigation au-thorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968). While Terry author-ized a restricted incidental search for weaponswhen reasonable suspicion warrants such a safetymeasure, id., at 25-26, 88 S.Ct. 1868, the Courttook care to keep a Terry stop from automaticallybecoming a foot in the door for all investigatorypurposes; the permissible intrusion was bounded bythe justification for the detention, id., at 29-30, 88S.Ct. 1868.FN5 Although facts disclosed by en-quiry within this limit might give grounds to go fur-ther, the government could not otherwise take ad-vantage of a suspect's immobility to search forevidence unrelated to the reason for the detention.That has to be the rule unless Terry is going to be-come an open sesame for general searches, and thatrule requires holding that the police do not havereasonable grounds to conduct sniff searches fordrugs simply because they have stopped someoneto receive a ticket for a highway offense. Since thepolice had no indication of illegal activity beyondthe speed of the car in this case, the sniff searchshould be held unreasonable under the FourthAmendment and its fruits should be suppressed.

FN5. Thus, in Place itself, the Governmentofficials had independent grounds to sus-pect that the luggage in question containedcontraband before they employed the dogsniff. 462 U.S., at 698, 103 S.Ct. 2637(describing how Place had acted suspi-ciously in line at the airport and hadlabeled his luggage with inconsistent andfictional addresses).

Nothing in the case relied upon by the Court,United States v. Jacobsen, 466 U.S. 109, 104 S.Ct.1652, 80 L.Ed.2d 85 (1984), unsettled the limit ofreasonable enquiry adopted in Terry. In Jacobsen,the Court found that no Fourth Amendment search



occurred when federal agents analyzed **842powder they had already lawfully obtained. TheCourt noted that because the test could only revealwhether the powder was cocaine, the owner had nolegitimate privacy interest at stake. 466 U.S., at123, 104 S.Ct. 1652. *416 As already explained,however, the use of a sniffing dog in cases like thisis significantly different and properly treated as asearch that does indeed implicate Fourth Amend-ment protection.

In Jacobsen, once the powder was analyzed, thatwas effectively the end of the matter: either thepowder was cocaine, a fact the owner had no legit-imate interest in concealing, or it was not cocaine,in which case the test revealed nothing about thepowder or anything else that was not already legit-imately obvious to the police. But in the case of thedog sniff, the dog does not smell the disclosed con-traband; it smells a closed container. An affirmativereaction therefore does not identify a substance thepolice already legitimately possess, but informs thepolice instead merely of a reasonable chance offinding contraband they have yet to put their handson. The police will then open the container and dis-cover whatever lies within, be it marijuana or theowner's private papers. Thus, while Jacobsen couldrely on the assumption that the enquiry in questionwould either show with certainty that a known sub-stance was contraband or would reveal nothingmore, both the certainty and the limit on disclosurethat may follow are missing when the dog sniffs thecar.FN6

FN6. It would also be error to claim thatsome variant of the plain-view doctrine ex-cuses the lack of justification for the dogsniff in this case. When an officer observesan object left by its owner in plain view,no search occurs because the owner hasexhibited “no intention to keep [the object]to himself.” Katz v. United States, 389U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d576 (1967) (Harlan, J., concurring). In

contrast, when an individual conceals hispossessions from the world, he hasgrounds to expect some degree of privacy.While plain view may be enhanced some-what by technology, see, e.g., Dow Chem-ical Co. v. United States, 476 U.S. 227,106 S.Ct. 1819, 90 L.Ed.2d 226 (1986)(allowing for aerial surveillance of an in-dustrial complex), there are limits. AsKyllo v. United States, 533 U.S. 27, 33,121 S.Ct. 2038, 150 L.Ed.2d 94 (2001),explained in treating the thermal-imagingdevice as outside the plain-view doctrine,“[w]e have previously reserved judgmentas to how much technological enhance-ment of ordinary perception” turns mereobservation into a Fourth Amendmentsearch. While Kyllo laid special emphasison the heightened privacy expectations thatsurround the home, closed car trunks areaccorded some level of privacy protection.See, e.g., New York v. Belton, 453 U.S.454, 460, n. 4, 101 S.Ct. 2860, 69 L.Ed.2d768 (1981) (holding that even a search in-cident to arrest in a vehicle does not itselfpermit a search of the trunk). As a result, ifFourth Amendment protections are to havemeaning in the face of superhuman, yetfallible, techniques like the use of traineddogs, those techniques must be justified onthe basis of their reasonableness, lesteverything be deemed in plain view.

*417 The Court today does not go so far as to sayexplicitly that sniff searches by dogs trained tosense contraband always get a free pass under theFourth Amendment, since it reserves judgment onthe constitutional significance of sniffs assumed tobe more intrusive than a dog's walk around astopped car, ante, at 838. For this reason, I do nottake the Court's reliance on Jacobsen as actuallysignaling recognition of a broad authority to con-duct suspicionless sniffs for drugs in any parked



car, about which Justice GINSBURG is rightly con-cerned, post, at 845-846, or on the person of anypedestrian minding his own business on a sidewalk.But the Court's stated reasoning provides no appar-ent stopping point short of such excesses. For thesake of providing a workable framework to analyzecases on facts like these, which are certain to comealong, I would treat the dog sniff as the familiarsearch it is in fact, **843 subject to scrutiny underthe Fourth Amendment.FN7

FN7. I should take care myself to reservejudgment about a possible case signific-antly unlike this one. All of us are con-cerned not to prejudge a claim of authorityto detect explosives and dangerous chem-ical or biological weapons that might becarried by a terrorist who prompts no indi-vidualized suspicion. Suffice it to say herethat what is a reasonable search depends inpart on demonstrated risk. Unreasonablesniff searches for marijuana are not neces-sarily unreasonable sniff searches for de-structive or deadly material if suicidebombs are a societal risk.

Justice GINSBURG, with whom Justice SOUTERjoins, dissenting.Illinois State Police Trooper Daniel Gillette stoppedRoy Caballes for driving 71 miles per hour in azone with a posted *418 speed limit of 65 miles perhour. Trooper Craig Graham of the Drug Interdic-tion Team heard on the radio that Trooper Gillettewas making a traffic stop. Although Gillette reques-ted no aid, Graham decided to come to the scene toconduct a dog sniff. Gillette informed Caballes thathe was speeding and asked for the usual docu-ments-driver's license, car registration, and proof ofinsurance. Caballes promptly provided the reques-ted documents but refused to consent to a search ofhis vehicle. After calling his dispatcher to check onthe validity of Caballes' license and for outstandingwarrants, Gillette returned to his vehicle to writeCaballes a warning ticket. Interrupted by a radio

call on an unrelated matter, Gillette was still writ-ing the ticket when Trooper Graham arrived withhis drug-detection dog. Graham walked the dogaround the car, the dog alerted at Caballes' trunk,and, after opening the trunk, the troopers foundmarijuana. 207 Ill.2d 504, 506-507, 280 Ill.Dec.277, 278, 802 N.E.2d 202, 203 (2003).

The Supreme Court of Illinois held that the drugevidence should have been suppressed. Id., at 506,280 Ill.Dec., at 278, 802 N.E.2d, at 202. Adheringto its decision in People v. Cox, 202 Ill.2d 462, 270Ill.Dec. 81, 782 N.E.2d 275 (2002), the court em-ployed a two-part test taken from Terry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),to determine the overall reasonableness of the stop.207 Ill.2d, at 508, 280 Ill.Dec., at 278, 802 N.E.2d,at 204. The court asked first “whether the officer'saction was justified at its inception,” and second“whether it was reasonably related in scope to thecircumstances which justified the interference inthe first place.” Ibid. (quoting People v. Brownlee,186 Ill.2d 501, 518-519, 239 Ill.Dec. 25, 34, 713N.E.2d 556, 565 (1999) (in turn quoting Terry, 392U.S., at 19-20, 88 S.Ct. 1868)). “[I]t is undisputed,”the court observed, “that the traffic stop was prop-erly initiated”; thus, the dispositive inquiry trainedon the “second part of the Terry test,” in which“[t]he State bears the burden of establishing that theconduct remained within the scope of the stop.” 207Ill.2d, at 509, 280 Ill.Dec., at 279, 802 N.E.2d, at204.

*419 The court concluded that the State failed tooffer sufficient justification for the canine sniff:“The police did not detect the odor of marijuana inthe car or note any other evidence suggesting thepresence of illegal drugs.” Ibid. Lacking “specificand articulable facts” supporting the canine sniff,ibid. (quoting Cox, 202 Ill.2d, at 470-471, 270Ill.Dec. 81, 782 N.E.2d, at 281), the court ruled,“the police impermissibly broadened the scope ofthe traffic stop in this case into a drug investiga-tion.” 207 Ill.2d, at 509, 280 Ill.Dec., at 279, 802



N.E.2d, at 204.FN1 I would affirm the Illinois**844 Supreme Court's judgment and hold that thedrug sniff violated the Fourth Amendment.

FN1. The Illinois Supreme Court held in-sufficient to support a canine sniff Gil-lette's observations that (1) Caballes saidhe was moving to Chicago, but his onlyvisible belongings were two sport coats inthe backseat; (2) the car smelled of airfreshener; (3) Caballes was dressed forbusiness, but was unemployed; and (4)Caballes seemed nervous. Even viewed to-gether, the court said, these observationsgave rise to “nothing more than a vaguehunch” of “possible wrongdoing.” 207Ill.2d 504, 509-510, 280 Ill.Dec., at279-280, 802 N.E.2d 202, 204-205 (2003).This Court proceeds on “the assumptionthat the officer conducting the dog sniffhad no information about [Caballes].”Ante, at 837.

In Terry v. Ohio, the Court upheld the stop and sub-sequent frisk of an individual based on an officer'sobservation of suspicious behavior and his reason-able belief that the suspect was armed. See 392U.S., at 27-28, 88 S.Ct. 1868. In a Terry-type in-vestigatory stop, “the officer's action [must be] jus-tified at its inception, and ... reasonably related inscope to the circumstances which justified the inter-ference in the first place.” Id., at 20, 88 S.Ct. 1868.In applying Terry, the Court has several times in-dicated that the limitation on “scope” is not con-fined to the duration of the seizure; it also encom-passes the manner in which the seizure is conduc-ted. See, e.g., Hiibel v. Sixth Judicial Dist. Court ofNev., Humboldt Cty., 542 U.S. 177, 188, 124 S.Ct.2451, 2459, 159 L.Ed.2d 292 (2004) (an officer'srequest that an individual identify himself “has animmediate relation to the purpose, rationale, andpractical demands of a Terry stop”); United Statesv. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83L.Ed.2d 604 (1985) (examining, under Terry, *420

both “the length and intrusiveness of the stop anddetention”); Florida v. Royer, 460 U.S. 491, 500,103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (pluralityopinion) (“[A]n investigative detention must betemporary and last no longer than is necessary toeffectuate the purpose of the stop [and] the invest-igative methods employed should be the least in-trusive means reasonably available to verify or dis-pel the officer's suspicion ....”).

“A routine traffic stop,” the Court has observed, “isa relatively brief encounter and ‘is more analogousto a so-called Terry stop ... than to a formal arrest.’” Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct.484, 142 L.Ed.2d 492 (1998) (quoting Berkemer v.McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82L.Ed.2d 317 (1984)); see also ante, at 841(SOUTER, J., dissenting) (The government may not“take advantage of a suspect's immobility to searchfor evidence unrelated to the reason for the deten-tion.”).FN2 I would apply Terry's reasonable-rela-tion test, as the Illinois Supreme Court did, to de-termine whether the canine sniff impermissibly ex-panded the scope of the initially valid seizure ofCaballes.

FN2. The Berkemer Court cautioned thatby analogizing a traffic stop to a Terrystop, it did “not suggest that a traffic stopsupported by probable cause may not ex-ceed the bounds set by the Fourth Amend-ment on the scope of a Terry stop.” 468U.S., at 439, n. 29, 104 S.Ct. 3138. ThisCourt, however, looked to Terry earlier indeciding that an officer acted reasonablywhen he ordered a motorist stopped fordriving with expired license tags to exit hiscar, Pennsylvania v. Mimms, 434 U.S. 106,109-110, 98 S.Ct. 330, 54 L.Ed.2d 331(1977) (per curiam), and later reaffirmedthe Terry analogy when evaluating a policeofficer's authority to search a vehicle dur-ing a routine traffic stop, Knowles, 525U.S., at 117, 119 S.Ct. 484.



It is hardly dispositive that the dog sniff in this casemay not have lengthened the duration of the stop.Cf. ante, at 837 (“A seizure ... can become unlawfulif it is prolonged beyond the time reasonably re-quired to complete [the initial] mission.”). Terry, itmerits repetition, instructs that **845 any investig-ation must be “reasonably related in scope to thecircumstances which justified the interference inthe first place.” 392 U.S., at 20, 88 S.Ct. 1868(emphasis added). The unwarranted*421 and non-consensual expansion of the seizure here from aroutine traffic stop to a drug investigationbroadened the scope of the investigation in a man-ner that, in my judgment, runs afoul of the FourthAmendment.FN3

FN3. The question whether a police officerinquiring about drugs without reasonablesuspicion unconstitutionally broadens atraffic investigation is not before theCourt. Cf. Florida v. Bostick, 501 U.S.429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389(1991) (police questioning of a bus passen-ger, who might have just said “No,” didnot constitute a seizure).

The Court rejects the Illinois Supreme Court's judg-ment and, implicitly, the application of Terry to atraffic stop converted, by calling in a dog, to a drugsearch. The Court so rules, holding that a dog sniffdoes not render a seizure that is reasonable in timeunreasonable in scope. Ante, at 837. Dog sniffs thatdetect only the possession of contraband may beemployed without offense to the Fourth Amend-ment, the Court reasons, because they reveal nolawful activity and hence disturb no legitimate ex-pectation of privacy. Ante, at 837-838.

In my view, the Court diminishes the FourthAmendment's force by abandoning the secondTerry inquiry (was the police action “reasonably re-lated in scope to the circumstances [justifiying] the[initial] interference”). 392 U.S., at 20, 88 S.Ct.1868. A drug-detection dog is an intimidating an-

imal. Cf. United States v. Williams, 356 F.3d 1268,1276 (C.A.10 2004) (McKay, J., dissenting) (“drugdogs are not lap dogs”). Injecting such an animalinto a routine traffic stop changes the character ofthe encounter between the police and the motorist.The stop becomes broader, more adversarial, and(in at least some cases) longer. Caballes-who, as faras Troopers Gillette and Graham knew, was guiltysolely of driving six miles per hour over the speedlimit-was exposed to the embarrassment and intim-idation of being investigated, on a public thorough-fare, for drugs. Even if the drug sniff is not charac-terized as a Fourth Amendment “search,” cf.*422Indianapolis v. Edmond, 531 U.S. 32, 40, 121S.Ct. 447, 148 L.Ed.2d 333 (2000); United States v.Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77L.Ed.2d 110 (1983), the sniff surely broadened thescope of the traffic-violation-related seizure.

The Court has never removed police action fromFourth Amendment control on the ground that theaction is well calculated to apprehend the guilty.See, e.g., United States v. Karo, 468 U.S. 705, 717,104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (FourthAmendment warrant requirement applies to policemonitoring of a beeper in a house even if “the facts[justify] believing that a crime is being or will becommitted and that monitoring the beeper whereverit goes is likely to produce evidence of criminalactivity.”); see also Minnesota v. Carter, 525 U.S.83, 110, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)(GINSBURG, J., dissenting) (“Fourth Amendmentprotection, reserved for the innocent only, wouldhave little force in regulating police behavior to-ward either the innocent or the guilty.”). Undertoday's decision, every traffic stop could become anoccasion to call in the dogs, to the distress and em-barrassment of the law-abiding population.

The Illinois Supreme Court, it seems to me, cor-rectly apprehended the danger in allowing the po-lice to search for contraband despite the absence ofcause to suspect its presence. Today's decision, incontrast, clears the way for suspicionless, **846



dog-accompanied drug sweeps of parked cars alongsidewalks and in parking lots. Compare, e.g.,United States v. Ludwig, 10 F.3d 1523, 1526-1527(C.A.10 1993) (upholding a search based on a can-ine drug sniff of a parked car in a motel parking lotconducted without particular suspicion), withUnited States v. Quinn, 815 F.2d 153, 159 (C.A.11987) (officers must have reasonable suspicion thata car contains narcotics at the moment a dog sniff isperformed), and Place, 462 U.S., at 706-707, 103S.Ct. 2637 (Fourth Amendment not violated by adog sniff of a piece of luggage that was seized, pre-sniff, based on suspicion of drugs). Nor would mo-torists have constitutional grounds for complaintshould police with dogs, stationed at long trafficlights, circle cars waiting for the red signal to turngreen.

*423 Today's decision also undermines this Court'ssituation-sensitive balancing of Fourth Amendmentinterests in other contexts. For example, in Bond v.United States, 529 U.S. 334, 338-339, 120 S.Ct.1462, 146 L.Ed.2d 365 (2000), the Court held that abus passenger had an expectation of privacy in abag placed in an overhead bin and that a police of-ficer's physical manipulation of the bag constitutedan illegal search. If canine drug sniffs are entirelyexempt from Fourth Amendment inspection, a sniffcould substitute for an officer's request to a bus pas-senger for permission to search his bag, with thissignificant difference: The passenger would nothave the option to say “No.”

The dog sniff in this case, it bears emphasis, wasfor drug detection only. A dog sniff for explosives,involving security interests not presented here,would be an entirely different matter. Detector dogsare ordinarily trained not as all-purpose sniffers,but for discrete purposes. For example, they may betrained for narcotics detection or for explosives de-tection or for agricultural products detection. See,e.g., U.S. Customs & Border Protection, CanineEnforcement Training Center Training ProgramCourse Descriptions, http:// www. cbp. gov/ xp/

cgov/ border_ security/ canines/ training_ program.xml (all Internet materials as visited Dec. 16, 2004,and available in Clerk of Court's case file)(describing Customs training courses in narcoticsdetection); Transportation Security Administration,Canine and Explosives Program, http:// www. tsa.gov/ public/ display? theme=32 (describing Trans-portation Security Administration's explosives de-tection canine program); U.S. Dept. of Agriculture,Animal and Plant Health Inspection Service,USDA's Detector Dogs: Protecting American Agri-culture (Oct.2001), available at http:// www. aphis.usda. gov/ oa/ pubs/ detdogs. pdf (describingUSDA Beagle Brigade detector dogs trained to de-tect prohibited fruits, plants, and meat); see alsoJennings, Origins and History of Security and De-tector Dogs, in Canine Sports Medicine and Sur-gery 16, 18-19 (M. Bloomberg, J. Dee, & R. Tayloreds.1998) (describing narcotics-detector *424 dogsused by Border Patrol and Customs, and bomb de-tector dogs used by the Federal Aviation Adminis-tration and the Secret Service, but noting the pos-sibility in some circumstances of cross trainingdogs for multiple tasks); S. Chapman, Police Dogsin North America 64, 70-79 (1990) (describing nar-cotics- and explosives-detection dogs and notingthe possibility of cross training). There is no indica-tion in this case that the dog accompanying TrooperGraham was trained for anything other than drugdetection. See 207 Ill.2d, at 507, 280 Ill.Dec., at278, 802 N.E.2d, at 203 (“Trooper Graham arrivedwith his drug-detection dog ....”); Brief for Petition-er 3 (“Trooper Graham arrived with a drug-de-tection dog ....”).

**847 This Court has distinguished between thegeneral interest in crime control and more immedi-ate threats to public safety. In Michigan Dept. ofState Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481,110 L.Ed.2d 412 (1990), this Court upheld the useof a sobriety traffic checkpoint. Balancing theState's interest in preventing drunk driving, the ex-tent to which that could be accomplished through



the checkpoint program, and the degree of intrusionthe stops involved, the Court determined that theState's checkpoint program was consistent with theFourth Amendment. Id., at 455, 110 S.Ct. 2481.Ten years after Sitz, in Indianapolis v. Edmond, 531U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333, this Courtheld that a drug interdiction checkpoint violated theFourth Amendment. Despite the illegal narcoticstraffic that the Nation is struggling to stem, theCourt explained, a “general interest in crime con-trol” did not justify the stops. Id., at 43-44, 121S.Ct. 447 (internal quotation marks omitted). TheCourt distinguished the sobriety checkpoints in Sitzon the ground that those checkpoints were designedto eliminate an “immediate, vehicle-bound threat tolife and limb.” 531 U.S., at 43, 121 S.Ct. 447.

The use of bomb-detection dogs to check vehiclesfor explosives without doubt has a closer kinship tothe sobriety checkpoints in Sitz than to the drugcheckpoints in Edmond. As the Court observed inEdmond: “[T]he Fourth Amendment would almostcertainly permit an appropriately tailored*425 road-block set up to thwart an imminent terrorist attack....” 531 U.S., at 44, 121 S.Ct. 447. Even if theCourt were to change course and characterize a dogsniff as an independent Fourth Amendment search,see ante, p. 838 (SOUTER, J., dissenting), the im-mediate, present danger of explosives would likelyjustify a bomb sniff under the special needs doc-trine. See, e.g., ante, at 843, n. 7 (SOUTER, J., dis-senting); Griffin v. Wisconsin, 483 U.S. 868, 873,107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (permittingexceptions to the warrant and probable-cause re-quirements for a search when “special needs, bey-ond the normal need for law enforcement,” makethose requirements impracticable (quoting New Jer-sey v. T.L. O., 469 U.S. 325, 351, 105 S.Ct. 733, 83L.Ed.2d 720 (1985) (Blackmun, J., concurring injudgment))).

* * *

For the reasons stated, I would hold that the policeviolated Caballes' Fourth Amendment rights when,without cause to suspect wrongdoing, they conduc-ted a dog sniff of his vehicle. I would therefore af-firm the judgment of the Illinois Supreme Court.

U.S.,2005.Illinois v. Caballes543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842, 73USLW 4111, 05 Cal. Daily Op. Serv. 648, 2005Daily Journal D.A.R. 849, 18 Fla. L. Weekly Fed. S100

END OF DOCUMENT



Supreme Court of the United StatesDanny Lee KYLLO, Petitioner,

v.UNITED STATES.No. 99-8508.

Argued Feb. 20, 2001.Decided June 11, 2001.

After unsuccessfully moving to suppress evidence,defendant entered conditional guilty plea to manu-facturing marijuana and appealed. Following re-mand, 37 F.3d 526, the United States District Courtfor the District of Oregon, Helen J. Frye, J., againdenied suppression motion, and defendant ap-pealed. The Ninth Circuit Court of Appeals, 190F.3d 1041, affirmed. Certiorari was granted. TheUnited States Supreme Court, Justice Scalia, heldthat: (1) use of sense-enhancing technology to gath-er any information regarding interior of home thatcould not otherwise have been obtained withoutphysical intrusion into constitutionally protectedarea constitutes a “search,” and (2) use of thermalimaging to measure heat emanating from home wassearch.

Reversed and remanded.

Justice Stevens filed a dissenting opinion, in whichChief Justice Rehnquist and Justices O'Connor andKennedy joined.

West Headnotes



349k23 k. Fourth Amendment and Reason-ableness in General. Most Cited CasesWith few exceptions, the question whether a war-

rantless search of a home is reasonable and henceconstitutional must be answered no. U.S.C.A.Const.Amend. 4.



Searches and Seizures 349 21

349 Searches and Seizures349I In General349k13 What Constitutes Search or Seizure

349k21 k. Use of Electronic Devices;Tracking Devices or “Beepers.”. Most Cited CasesObtaining by sense-enhancing technology any in-formation regarding the interior of a home thatcould not otherwise have been obtained withoutphysical intrusion into a constitutionally protectedarea, constitutes a “search”-at least where the tech-nology in question is not in general public use.U.S.C.A. Const.Amend. 4.

[3] Controlled Substances 96H 128

96H Controlled Substances96HIV Searches and Seizures96HIV(B) Search Without Warrant96Hk127 Premises, Search of

96Hk128 k. In General. Most CitedCases(Formerly 138k185(1) Drugs and Narcotics)

Searches and Seizures 349 13.1


Police engaged in unlawful “search” when they

121 S.Ct. 2038 33 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, 01 Cal. Daily Op. Serv. 4749, 2001 Daily Journal D.A.R. 5879, 14Fla. L. Weekly Fed. S 329, 2001 DJCAR 2926(Cite as: 533 U.S. 27, 121 S.Ct. 2038)


used thermal imaging device without warrant toscan home to determine whether heat emanatingfrom home was consistent with use of high-in-tensity lamps employed in indoor marijuana grow-ing operation. U.S.C.A. Const.Amend. 4.



Use of thermal imaging devices to gather informa-tion about heat in home's interior is not removedfrom scope of Fourth Amendment search merelybecause device captures only heat radiating fromexternal surface of house, and thus involves“off-the-wall” rather than “through-the-wall” obser-vation. U.S.C.A. Const.Amend. 4.



Information gathered through use of thermal ima-ging to measure heat emanating from exterior ofhome is product of a search even if relevant inform-ation regarding heat use in interior of home must beinferred from information provided by device.U.S.C.A. Const.Amend. 4.


96H Controlled Substances96HIV Searches and Seizures96HIV(B) Search Without Warrant96Hk127 Premises, Search of

96Hk128 k. In General. Most CitedCases(Formerly 138k185(1) Drugs and Narcotics)



349k36 Circumstances Affecting Validity ofWarrantless Search, in General

349k37 k. Nature and Source of Informa-tion in General; Suspicion or Conjecture. MostCited CasesProhibition against warrantless use of thermal ima-ging devices is not limited to “intimate details” re-garding home; such limitation would be wrong inprinciple, in that Fourth Amendment's protection ofhome has never been tied to measurement of qualityof information obtained, and impracticable in ap-plication, in that it would not provide a workableaccommodation between law enforcement needsand Fourth Amendment interests, and would re-quire development of jurisprudence specifyingwhich home activities are “intimate” and which arenot. U.S.C.A. Const.Amend. 4.




349 Searches and Seizures349I In General349k13 What Constitutes Search or Seizure

349k21 k. Use of Electronic Devices;Tracking Devices or “Beepers.”. Most Cited Cases




349k37 k. Nature and Source of Informa-tion in General; Suspicion or Conjecture. MostCited CasesWhere the Government uses a device that is not in

121 S.Ct. 2038 Page 2533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, 01 Cal. Daily Op. Serv. 4749, 2001 Daily Journal D.A.R. 5879, 14Fla. L. Weekly Fed. S 329, 2001 DJCAR 2926(Cite as: 533 U.S. 27, 121 S.Ct. 2038)


general public use, to explore details of the homethat would previously have been unknowablewithout physical intrusion, the surveillance is a“search”and is presumptively unreasonable withouta warrant. U.S.C.A. Const.Amend. 4.

**2039 Syllabus FN*

FN* The syllabus constitutes no part of theopinion of the Court but has been preparedby the Reporter of Decisions for the con-venience of the reader. See United States v.Detroit Timber & Lumber Co., 200 U.S.321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*27 Suspicious that marijuana was being grown inpetitioner Kyllo's home in a triplex, agents used athermal-imaging device to scan the triplex to de-termine if the amount of heat emanating from it wasconsistent with the high-intensity lamps typicallyused for indoor marijuana growth. The scan showedthat Kyllo's garage roof and a side wall were relat-ively hot compared to the rest of his home and sub-stantially warmer than the neighboring units. Basedin part on the thermal imaging, a Federal MagistrateJudge issued a warrant to search Kyllo's home,where the agents found marijuana growing. AfterKyllo was indicted on a federal drug charge, he un-successfully moved to suppress the evidence seizedfrom his home and then entered a conditional guiltyplea. The Ninth Circuit ultimately affirmed, up-holding the thermal imaging on the ground thatKyllo had shown no subjective expectation of pri-vacy because he had made no attempt to concealthe heat escaping from his home. Even if he had,ruled the court, there was no objectively reasonableexpectation of privacy because the thermal imagerdid not expose any intimate details of Kyllo's life,only amorphous hot spots on his home's exterior.

Held: Where, as here, the Government uses adevice that is not in general public use, to exploredetails of a private home that would previouslyhave been unknowable without physical intrusion,

the surveillance is a Fourth Amendment “search,”and is presumptively unreasonable without a war-rant. Pp. 2041-2047.

(a) The question whether a warrantless search of ahome is reasonable and hence constitutional mustbe answered no in most instances, but the ante-cedent question whether a Fourth Amendment“search” has occurred is not so simple. This Courthas approved warrantless visual surveillance of ahome, see California v. Ciraolo, 476 U.S. 207, 213,106 S.Ct. 1809, 90 L.Ed.2d 210, ruling that visualobservation is no “search” at all, see Dow ChemicalCo. v. United States, 476 U.S. 227, 234-235, 239,106 S.Ct. 1819, 90 L.Ed.2d 226. In assessing whena search is not a search, the Court has adapted aprinciple first enunciated in Katz v. United States,389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576: A“search” does not occur-even when its object is ahouse explicitly protected by **2040 the FourthAmendment-unless the individual manifested a sub-jective *28 expectation of privacy in the searchedobject, and society is willing to recognize that ex-pectation as reasonable, see, e.g., California v.Ciraolo, supra, at 211, 106 S.Ct. 1809. Pp.2041-2043.

(b) While it may be difficult to refine the Katz testin some instances, in the case of the search of ahome's interior-the prototypical and hence mostcommonly litigated area of protected privacy-thereis a ready criterion, with roots deep in the commonlaw, of the minimal expectation of privacy that ex-ists, and that is acknowledged to be reasonable. Towithdraw protection of this minimum expectationwould be to permit police technology to erode theprivacy guaranteed by the Fourth Amendment.Thus, obtaining by sense-enhancing technology anyinformation regarding the home's interior that couldnot otherwise have been obtained without physical“intrusion into a constitutionally protected area,”Silverman v. United States, 365 U.S. 505, 512, 81S.Ct. 679, 5 L.Ed.2d 734, constitutes a search-atleast where (as here) the technology in question is



not in general public use. This assures preservationof that degree of privacy against government thatexisted when the Fourth Amendment was adopted.P. 2043.

(c) Based on this criterion, the information obtainedby the thermal imager in this case was the productof a search. The Court rejects the Government's ar-gument that the thermal imaging must be upheldbecause it detected only heat radiating from thehome's external surface. Such a mechanical inter-pretation of the Fourth Amendment was rejected inKatz, where the eavesdropping device in questionpicked up only sound waves that reached the exteri-or of the phone booth to which it was attached. Re-versing that approach would leave the homeownerat the mercy of advancing technology-includingimaging technology that could discern all humanactivity in the home. Also rejected is the Govern-ment's contention that the thermal imaging wasconstitutional because it did not detect “intimatedetails.” Such an approach would be wrong in prin-ciple because, in the sanctity of the home, all de-tails are intimate details. See, e.g., United States v.Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d530; Dow Chemical, supra, at 238, 106 S.Ct. 1819,distinguished. It would also be impractical in ap-plication, failing to provide a workable accommod-ation between law enforcement needs and FourthAmendment interests. See Oliver v. United States,466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214.Pp. 2044-2046.

(d) Since the imaging in this case was an unlawfulsearch, it will remain for the District Court to de-termine whether, without the evidence it provided,the search warrant was supported by probablecause-and if not, whether there is any other basisfor supporting admission of that evidence. Pp.2046-2047.

190 F.3d 1041, reversed and remanded.

*29 SCALIA, J., delivered the opinion of the Court,

in which SOUTER, THOMAS, GINSBURG, andBREYER, JJ., joined. STEVENS, J., filed a dissent-ing opinion, in which REHNQUIST, C.J., andO'CONNOR and KENNEDY, JJ., joined, post, p.2047.Kenneth Lerner, for petitioner.

Michael R. Dreeben, Washington, DC, for respond-ent.

For U.S. Supreme Court briefs, see:2000 WL33127872 (Pet.Brief)2000 WL 1890949(Resp.Brief)20001 WL 62925, 2001 WL 94611(Reply.Brief)

Justice SCALIA delivered the opinion of the Court.

This case presents the question whether the use of athermal-imaging device aimed at a private homefrom a public street to **2041 detect relativeamounts of heat within the home constitutes a“search” within the meaning of the Fourth Amend-ment.

I

In 1991 Agent William Elliott of the United StatesDepartment of the Interior came to suspect thatmarijuana was being grown in the home belongingto petitioner Danny Kyllo, part of a triplex onRhododendron Drive in Florence, Oregon. Indoormarijuana growth typically requires high-intensitylamps. In order to determine whether an amount ofheat was emanating from petitioner's home consist-ent with the use of such lamps, at 3:20 a.m. onJanuary 16, 1992, Agent Elliott and Dan Haas usedan Agema Thermovision 210 thermal imager toscan the triplex. Thermal imagers detect infrared ra-diation, which virtually all objects emit but whichis not visible to the naked eye. The imager convertsradiation into images based on relative warmth-black *30 is cool, white is hot, shades of gray con-note relative differences; in that respect, it operatessomewhat like a video camera showing heat im-



ages. The scan of Kyllo's home took only a fewminutes and was performed from the passenger seatof Agent Elliott's vehicle across the street from thefront of the house and also from the street in backof the house. The scan showed that the roof overthe garage and a side wall of petitioner's home wererelatively hot compared to the rest of the home andsubstantially warmer than neighboring homes in thetriplex. Agent Elliott concluded that petitioner wasusing halide lights to grow marijuana in his house,which indeed he was. Based on tips from inform-ants, utility bills, and the thermal imaging, a Feder-al Magistrate Judge issued a warrant authorizing asearch of petitioner's home, and the agents found anindoor growing operation involving more than 100plants. Petitioner was indicted on one count of man-ufacturing marijuana, in violation of 21 U.S.C. §841(a)(1). He unsuccessfully moved to suppress theevidence seized from his home and then entered aconditional guilty plea.

The Court of Appeals for the Ninth Circuit re-manded the case for an evidentiary hearing regard-ing the intrusiveness of thermal imaging. On re-mand the District Court found that the Agema 210“is a non-intrusive device which emits no rays orbeams and shows a crude visual image of the heatbeing radiated from the outside of the house”; it“did not show any people or activity within thewalls of the structure”; “[t]he device used cannotpenetrate walls or windows to reveal conversationsor human activities”; and “[n]o intimate details ofthe home were observed.” Supp.App. to Pet. forCert. 39-40. Based on these findings, the DistrictCourt upheld the validity of the warrant that reliedin part upon the thermal imaging, and reaffirmed itsdenial of the motion to suppress. A divided Courtof Appeals initially reversed, 140 F.3d 1249 (1998),but that *31 opinion was withdrawn and the panel(after a change in composition) affirmed, 190 F.3d1041 (1999), with Judge Noonan dissenting. Thecourt held that petitioner had shown no subjectiveexpectation of privacy because he had made no at-

tempt to conceal the heat escaping from his home,id., at 1046, and even if he had, there was no ob-jectively reasonable expectation of privacy becausethe imager “did not expose any intimate details ofKyllo's life,” only “amorphous ‘hot spots' on theroof and exterior wall,” id., at 1047. We grantedcertiorari. 530 U.S. 1305, 121 S.Ct. 29, 147L.Ed.2d 1052 (2000).

II

[1] The Fourth Amendment provides that “[t]heright of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated.” “Atthe very core” of the Fourth Amendment “standsthe right of a man to retreat into his own home andthere be free from unreasonable governmental in-trusion.” **2042Silverman v. United States, 365U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).With few exceptions, the question whether a war-rantless search of a home is reasonable and henceconstitutional must be answered no. See Illinois v.Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111L.Ed.2d 148 (1990); Payton v. New York, 445 U.S.573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

On the other hand, the antecedent question whetheror not a Fourth Amendment “search” has occurredis not so simple under our precedent. The permiss-ibility of ordinary visual surveillance of a homeused to be clear because, well into the 20th century,our Fourth Amendment jurisprudence was tied tocommon-law trespass. See, e.g., Goldman v. UnitedStates, 316 U.S. 129, 134-136, 62 S.Ct. 993, 86L.Ed. 1322 (1942); Olmstead v. United States, 277U.S. 438, 464-466, 48 S.Ct. 564, 72 L.Ed. 944(1928). Cf. Silverman v. United States, supra, at510-512, 81 S.Ct. 679 (technical trespass not neces-sary for Fourth Amendment violation; it suffices ifthere is “actual intrusion into a constitutionally pro-tected area”). Visual surveillance was unquestion-ably lawful because “ ‘the *32 eye cannot by the



laws of England be guilty of a trespass.’ ” Boyd v.United States, 116 U.S. 616, 628, 6 S.Ct. 524, 29L.Ed. 746 (1886) (quoting Entick v. Carrington, 19How. St. Tr. 1029, 95 Eng. Rep. 807 (K.B.1765)).We have since decoupled violation of a person'sFourth Amendment rights from trespassory viola-tion of his property, see Rakas v. Illinois, 439 U.S.128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), butthe lawfulness of warrantless visual surveillance ofa home has still been preserved. As we observed inCalifornia v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct.1809, 90 L.Ed.2d 210 (1986), “[t]he FourthAmendment protection of the home has never beenextended to require law enforcement officers toshield their eyes when passing by a home on publicthoroughfares.”

One might think that the new validating rationalewould be that examining the portion of a house thatis in plain public view, while it is a “search” FN1

despite the absence of trespass, is not an“unreasonable” one under the Fourth Amendment.See Minnesota v. Carter, 525 U.S. 83, 104, 119S.Ct. 469, 142 L.Ed.2d 373 (1998) (BREYER, J.,concurring in judgment). But in fact we have heldthat visual observation is no “search” at all-perhapsin order to preserve somewhat more intact our doc-trine that warrantless searches are presumptivelyunconstitutional. See Dow Chemical Co. v. UnitedStates, 476 U.S. 227, 234-235, 239, 106 S.Ct. 1819,90 L.Ed.2d 226 (1986). In assessing when a searchis not a search, we have applied somewhat in re-verse the principle first enunciated in Katz v.United States, 389 U.S. 347, 88 S.Ct. 507, 19L.Ed.2d 576 (1967). Katz involved eavesdroppingby means of an electronic listening device placedon the outside of a telephone booth-a location notwithin the catalog (“persons, houses, papers, andeffects”) that the Fourth Amendment protectsagainst unreasonable searches. We held that the *33Fourth Amendment nonetheless protected Katzfrom the warrantless eavesdropping because he“justifiably relied” upon the privacy of the tele-

phone booth. Id., at 353, 88 S.Ct. 507. As JusticeHarlan's oft-quoted concurrence described it, aFourth Amendment search occurs when the govern-ment violates a subjective expectation of privacythat society recognizes as reasonable. See id., at361, 88 S.Ct. 507. We have subsequently appliedthis principle to hold that a Fourth Amendmentsearch does not occur-even when the explicitly pro-tected location of a house is concerned-unless “theindividual manifested a subjective expectation ofprivacy**2043 in the object of the challengedsearch,” and “society [is] willing to recognize thatexpectation as reasonable.” Ciraolo, supra, at 211,106 S.Ct. 1809. We have applied this test in hold-ing that it is not a search for the police to use a penregister at the phone company to determine whatnumbers were dialed in a private home, Smith v.Maryland, 442 U.S. 735, 743-744, 99 S.Ct. 2577,61 L.Ed.2d 220 (1979), and we have applied thetest on two different occasions in holding that aerialsurveillance of private homes and surroundingareas does not constitute a search, Ciraolo, supra;Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102L.Ed.2d 835 (1989).

FN1. When the Fourth Amendment wasadopted, as now, to “search” meant “[t]olook over or through for the purpose offinding something; to explore; to examineby inspection; as, to search the house for abook; to search the wood for a thief.” N.Webster, An American Dictionary of theEnglish Language 66 (1828) (reprint 6thed.1989).

The present case involves officers on a public streetengaged in more than naked-eye surveillance of ahome. We have previously reserved judgment as tohow much technological enhancement of ordinaryperception from such a vantage point, if any, is toomuch. While we upheld enhanced aerial photo-graphy of an industrial complex in Dow Chemical,we noted that we found “it important that this is notan area immediately adjacent to a private home,



where privacy expectations are most heightened,”476 U.S., at 237, n. 4, 106 S.Ct. 1819 (emphasis inoriginal).

III

It would be foolish to contend that the degree ofprivacy secured to citizens by the Fourth Amend-ment has been *34 entirely unaffected by the ad-vance of technology. For example, as the cases dis-cussed above make clear, the technology enablinghuman flight has exposed to public view (andhence, we have said, to official observation) un-covered portions of the house and its curtilage thatonce were private. See Ciraolo, supra, at 215, 106S.Ct. 1809. The question we confront today is whatlimits there are upon this power of technology toshrink the realm of guaranteed privacy.

[2][3] The Katz test-whether the individual has anexpectation of privacy that society is prepared to re-cognize as reasonable-has often been criticized ascircular, and hence subjective and unpredictable.See 1 W. LaFave, Search and Seizure § 2.1(d), pp.393-394 (3d ed.1996); Posner, The Uncertain Pro-tection of Privacy by the Supreme Court, 1979S.Ct. Rev. 173, 188; Carter, supra, at 97, 119 S.Ct.469 (SCALIA, J., concurring). But see Rakas,supra, at 143-144, n. 12, 99 S.Ct. 421. While it maybe difficult to refine Katz when the search of areassuch as telephone booths, automobiles, or even thecurtilage and uncovered portions of residences is atissue, in the case of the search of the interior ofhomes-the prototypical and hence most commonlylitigated area of protected privacy-there is a readycriterion, with roots deep in the common law, of theminimal expectation of privacy that exists, and thatis acknowledged to be reasonable. To withdrawprotection of this minimum expectation would be topermit police technology to erode the privacy guar-anteed by the Fourth Amendment. We think thatobtaining by sense-enhancing technology any in-formation regarding the interior of the home that

could not otherwise have been obtained withoutphysical “intrusion into a constitutionally protectedarea,” Silverman, 365 U.S., at 512, 81 S.Ct. 679,constitutes a search-at least where (as here) thetechnology in question is not in general public use.This assures preservation of that degree of privacyagainst government that existed when the FourthAmendment was adopted. On the basis of this cri-terion, the *35 information obtained by the thermalimager in this case was the product of a search.FN2

FN2. The dissent's repeated assertion thatthe thermal imaging did not obtain inform-ation regarding the interior of the home,post, at 2048 (opinion of STEVENS, J.), issimply inaccurate. A thermal imager re-veals the relative heat of various rooms inthe home. The dissent may not find that in-formation particularly private or important,see post, at 2048, 2049, 2051, but there isno basis for saying it is not information re-garding the interior of the home. The dis-sent's comparison of the thermal imagingto various circumstances in which outsideobservers might be able to perceive,without technology, the heat of the home-for example, by observing snowmelt on theroof, post, at 2048-is quite irrelevant. Thefact that equivalent information couldsometimes be obtained by other meansdoes not make lawful the use of means thatviolate the Fourth Amendment. The policemight, for example, learn how manypeople are in a particular house by settingup year-round surveillance; but that doesnot make breaking and entering to find outthe same information lawful. In any event,on the night of January 16, 1992, no out-side observer could have discerned the rel-ative heat of Kyllo's home without thermalimaging.

**2044 [4][5] The Government maintains,however, that the thermal imaging must be upheld



because it detected “only heat radiating from theexternal surface of the house,” Brief for UnitedStates 26. The dissent makes this its leading point,see post, at 2047, contending that there is a funda-mental difference between what it calls“off-the-wall” observations and “through-the-wallsurveillance.” But just as a thermal imager capturesonly heat emanating from a house, so also a power-ful directional microphone picks up only sound em-anating from a house-and a satellite capable ofscanning from many miles away would pick uponly visible light emanating from a house. We re-jected such a mechanical interpretation of theFourth Amendment in Katz, where the eavesdrop-ping device picked up only sound waves thatreached the exterior of the phone booth. Reversingthat approach would leave the homeowner at themercy of advancing technology-including imagingtechnology that could discern all human *36 activ-ity in the home. While the technology used in thepresent case was relatively crude, the rule we adoptmust take account of more sophisticated systemsthat are already in use or in development.FN3 Thedissent's reliance on the distinction between“off-the-wall” and “through-the-wall” observationis entirely incompatible with the dissent's belief,which we discuss below, that thermal-imaging ob-servations of the intimate details of a home are im-permissible. The most sophisticated thermal-ima-ging devices continue to measure heat“off-the-wall” rather than “through-the-wall”; thedissent's disapproval of those more sophisticatedthermal-imaging devices, see post, at 2051, is anacknowledgement that there is no substance to thisdistinction. As for the dissent's extraordinary asser-tion that anything learned through “an inference”cannot be a search, see post, at 2048-2049, thatwould validate even the “through-the-wall” techno-logies that the dissent purports to disapprove.Surely the dissent does not believe that the through-the-wall radar or ultrasound technology producesan 8-by-10 Kodak glossy that needs no analysis(i.e., the making of inferences). And, of course, the

novel proposition that inference insulates a searchis blatantly contrary to United States v. Karo, 468U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984),where the police “inferred” from the activation of abeeper that a certain can of ether was in the home.The police activity*37 was held to be a search, andthe search was held unlawful.FN4

FN3. The ability to “see” through wallsand other opaque barriers is a clear, andscientifically feasible, goal of law enforce-ment research and development. The Na-tional Law Enforcement and CorrectionsTechnology Center, a program within theUnited States Department of Justice, fea-tures on its Internet Website projects thatinclude a “Radar-Based Through-the-WallSurveillance System,” “Handheld Ultra-sound Through the Wall Surveillance,” anda “Radar Flashlight” that “will enable lawenforcement officers to detect individualsthrough interior building walls.”www.nlectc.org/techproj/ (visited May 3,2001). Some devices may emit low levelsof radiation that travel “through-the-wall,”but others, such as more sophisticatedthermal-imaging devices, are entirely pass-ive, or “off-the-wall” as the dissent puts it.

FN4. The dissent asserts, post, at 2049, n.3, that we have misunderstood its point,which is not that inference insulates asearch, but that inference alone is not asearch. If we misunderstood the point, itwas only in a good-faith effort to renderthe point germane to the case at hand. Theissue in this case is not the police's al-legedly unlawful inferencing, but their al-legedly unlawful thermal-imaging meas-urement of the emanations from a house.We say such measurement is a search; thedissent says it is not, because an inferenceis not a search. We took that to mean that,since the technologically enhanced emana-



tions had to be the basis of inferences be-fore anything inside the house could beknown, the use of the emanations could notbe a search. But the dissent certainlyknows better than we what it intends. Andif it means only that an inference is not asearch, we certainly agree. That has nobearing, however, upon whether hi-techmeasurement of emanations from a houseis a search.

**2045 [6] The Government also contends that thethermal imaging was constitutional because it didnot “detect private activities occurring in privateareas,” Brief for United States 22. It points out thatin Dow Chemical we observed that the enhancedaerial photography did not reveal any “intimate de-tails.” 476 U.S., at 238, 106 S.Ct. 1819. DowChemical, however, involved enhanced aerial pho-tography of an industrial complex, which does notshare the Fourth Amendment sanctity of the home.The Fourth Amendment's protection of the homehas never been tied to measurement of the qualityor quantity of information obtained. In Silverman,for example, we made clear that any physical inva-sion of the structure of the home, “by even a frac-tion of an inch,” was too much, 365 U.S., at 512, 81S.Ct. 679, and there is certainly no exception to thewarrant requirement for the officer who barelycracks open the front door and sees nothing but thenonintimate rug on the vestibule floor. In the home,our cases show, all details are intimate details, be-cause the entire area is held safe from prying gov-ernment eyes. Thus, in Karo, supra, the only thingdetected was a can of ether in the *38 home; and inArizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94L.Ed.2d 347 (1987), the only thing detected by aphysical search that went beyond what officers law-fully present could observe in “plain view” was theregistration number of a phonograph turntable.These were intimate details because they were de-tails of the home, just as was the detail of howwarm-or even how relatively warm-Kyllo was heat-

ing his residence.FN5

FN5. The Government cites our statementin California v. Ciraolo, 476 U.S. 207, 106S.Ct. 1809, 90 L.Ed.2d 210 (1986), notingapparent agreement with the State of Cali-fornia that aerial surveillance of a house'scurtilage could become “ ‘invasive’ ” if “‘modern technology’ ” revealed “ ‘thoseintimate associations, objects or activitiesotherwise imperceptible to police or fellowcitizens.’ ” Id., at 215, n. 3, 106 S.Ct. 1809(quoting Brief for State of California14-15). We think the Court's focus in thissecondhand dictum was not upon intimacybut upon otherwise-imperceptibility, whichis precisely the principle we vindicatetoday.

Limiting the prohibition of thermal imaging to“intimate details” would not only be wrong in prin-ciple; it would be impractical in application, failingto provide “a workable accommodation between theneeds of law enforcement and the interests protec-ted by the Fourth Amendment,” Oliver v. UnitedStates, 466 U.S. 170, 181, 104 S.Ct. 1735, 80L.Ed.2d 214 (1984). To begin with, there is no ne-cessary connection between the sophistication ofthe surveillance equipment and the “intimacy” ofthe details that it observes-which means that onecannot say (and the police cannot be assured) thatuse of the relatively crude equipment at issue herewill always be lawful. The Agema Thermovision210 might disclose, for example, at what hour eachnight the lady of the house takes her daily saunaand bath-a detail that many would consider“intimate”; and a much more sophisticated systemmight detect nothing more intimate than the factthat someone left a closet light on. We could not, inother words, develop a rule approving only thatthrough-the-wall surveillance which identifies ob-jects no smaller than 36 by 36 inches, but wouldhave to develop a jurisprudence specifying which*39 home activities are “intimate” and which are



not. **2046 And even when (if ever) that jurispru-dence were fully developed, no police officerwould be able to know in advance whether histhrough-the-wall surveillance picks up “intimate”details-and thus would be unable to know in ad-vance whether it is constitutional.

The dissent's proposed standard-whether the tech-nology offers the “functional equivalent of actualpresence in the area being searched,” post, at2050-would seem quite similar to our own at firstblush. The dissent concludes that Katz was such acase, but then inexplicably asserts that if the samelistening device only revealed the volume of theconversation, the surveillance would be permiss-ible, post, at 2051. Yet if, without technology, thepolice could not discern volume without being actu-ally present in the phone booth, Justice STEVENSshould conclude a search has occurred. Cf. Karo,468 U.S., at 735, 104 S.Ct. 3296 (STEVENS, J.,concurring in part and dissenting in part) (“I findlittle comfort in the Court's notion that no invasionof privacy occurs until a listener obtains some sig-nificant information by use of the device .... Abathtub is a less private area when the plumber ispresent even if his back is turned”). The sameshould hold for the interior heat of the home if onlya person present in the home could discern the heat.Thus the driving force of the dissent, despite its re-citation of the above standard, appears to be a dis-tinction among different types of information-wheth-er the “homeowner would even care if anybody no-ticed,” post, at 2051. The dissent offers no practicalguidance for the application of this standard, andfor reasons already discussed, we believe there canbe none. The people in their houses, as well as thepolice, deserve more precision.FN6

FN6. The dissent argues that we have in-jected potential uncertainty into the consti-tutional analysis by noting that whether ornot the technology is in general public usemay be a factor. See post, at 2050. Thatquarrel, however, is not with us but with

this Court's precedent. See Ciraolo, supra,at 215, 106 S.Ct. 1809 (“In an age whereprivate and commercial flight in the publicairways is routine, it is unreasonable forrespondent to expect that his marijuanaplants were constitutionally protected frombeing observed with the naked eye from analtitude of 1,000 feet”). Given that we canquite confidently say that thermal imagingis not “routine,” we decline in this case toreexamine that factor.

[7] *40 We have said that the Fourth Amendmentdraws “a firm line at the entrance to the house,”Payton, 445 U.S., at 590, 100 S.Ct. 1371. That line,we think, must be not only firm but also bright-which requires clear specification of those methodsof surveillance that require a warrant. While it iscertainly possible to conclude from the videotape ofthe thermal imaging that occurred in this case thatno “significant” compromise of the homeowner'sprivacy has occurred, we must take the long view,from the original meaning of the Fourth Amend-ment forward.

“The Fourth Amendment is to be construed in thelight of what was deemed an unreasonable searchand seizure when it was adopted, and in a mannerwhich will conserve public interests as well asthe interests and rights of individual citizens.”Carroll v. United States, 267 U.S. 132, 149, 45S.Ct. 280, 69 L.Ed. 543 (1925).

Where, as here, the Government uses a device thatis not in general public use, to explore details of thehome that would previously have been unknowablewithout physical intrusion, the surveillance is a“search” and is presumptively unreasonable withouta warrant.

Since we hold the Thermovision imaging to havebeen an unlawful search, it will remain for the Dis-trict Court to determine whether, without the evid-ence it provided, the search warrant issued in this



case was supported by probable cause-and if not,whether there is any other basis for supporting ad-mission of the evidence that the search pursuant tothe warrant produced.

**2047 *41 * * *

The judgment of the Court of Appeals is reversed;the case is remanded for further proceedings con-sistent with this opinion.

It is so ordered.

Justice STEVENS, with whom THE CHIEFJUSTICE, Justice O'CONNOR, and JusticeKENNEDY join, dissenting.There is, in my judgment, a distinction of constitu-tional magnitude between “through-the-wall sur-veillance” that gives the observer or listener directaccess to information in a private area, on the onehand, and the thought processes used to draw infer-ences from information in the public domain, on theother hand. The Court has crafted a rule that pur-ports to deal with direct observations of the insideof the home, but the case before us merely involvesindirect deductions from “off-the-wall” surveil-lance, that is, observations of the exterior of thehome. Those observations were made with a fairlyprimitive thermal imager that gathered data ex-posed on the outside of petitioner's home but didnot invade any constitutionally protected interest inprivacy. FN1 Moreover, I believe that the sup-posedly “bright-line” rule the Court has created inresponse to its concerns about future technologicaldevelopments is unnecessary, unwise, and incon-sistent with the Fourth Amendment.

FN1. After an evidentiary hearing, the Dis-trict Court found:

“[T]he use of the thermal imaging devicehere was not an intrusion into Kyllo'shome. No intimate details of the homewere observed, and there was no intru-

sion upon the privacy of the individualswithin the home. The device used cannotpenetrate walls or windows to revealconversations or human activities. Thedevice recorded only the heat beingemitted from the home.” Supp.App. toPet. for Cert. 40.

I

There is no need for the Court to craft a new rule todecide this case, as it is controlled by establishedprinciples from *42 our Fourth Amendment juris-prudence. One of those core principles, of course, isthat “searches and seizures inside a home without awarrant are presumptively unreasonable.” Payton v.New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63L.Ed.2d 639 (1980) (emphasis added). But it isequally well settled that searches and seizures ofproperty in plain view are presumptively reason-able. See id., at 586-587, 100 S.Ct. 1371.FN2

Whether that property is residential or commercial,the basic principle is the same: “ ‘What a personknowingly exposes to the public, even in his ownhome or office, is not a subject of Fourth Amend-ment protection.’ ” California v. Ciraolo, 476 U.S.207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)(quoting Katz v. United States, 389 U.S. 347, 351,88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); see Floridav. Riley, 488 U.S. 445, 449-450, 109 S.Ct. 693, 102L.Ed.2d 835 (1989); California v. Greenwood, 486U.S. 35, 40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30(1988); Dow Chemical Co. v. United States, 476U.S. 227, 235-236, 106 S.Ct. 1819, 90 L.Ed.2d 226(1986); **2048Air Pollution Variance Bd. of Colo.v. Western Alfalfa Corp., 416 U.S. 861, 865, 94S.Ct. 2114, 40 L.Ed.2d 607 (1974). That is the prin-ciple implicated here.

FN2. Thus, for example, we have foundconsistent with the Fourth Amendment,even absent a warrant, the search andseizure of garbage left for collection out-side the curtilage of a home, California v.



Greenwood, 486 U.S. 35, 108 S.Ct. 1625,100 L.Ed.2d 30 (1988); the aerial surveil-lance of a fenced-in backyard from an alti-tude of 1,000 feet, California v. Ciraolo,476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d210 (1986); the aerial observation of a par-tially exposed interior of a residentialgreenhouse from 400 feet above, Florida v.Riley, 488 U.S. 445, 109 S.Ct. 693, 102L.Ed.2d 835 (1989); the aerial photo-graphy of an industrial complex from sev-eral thousand feet above, Dow ChemicalCo. v. United States, 476 U.S. 227, 106S.Ct. 1819, 90 L.Ed.2d 226 (1986); and theobservation of smoke emanating fromchimney stacks, Air Pollution VarianceBd. of Colo. v. Western Alfalfa Corp., 416U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607(1974).

While the Court “take[s] the long view” and de-cides this case based largely on the potential of yet-to-be-developed technology that might allow“through-the-wall surveillance,” ante, at2045-2046; see ante, at 2044, n. 3, this case in-volves nothing more than off-the-wall surveillanceby law enforcement officers to gather informationexposed to the general public from the outside ofpetitioner's home. All that the infrared camera didin this case was passively measure heat emitted *43from the exterior surfaces of petitioner's home; allthat those measurements showed were relative dif-ferences in emission levels, vaguely indicating thatsome areas of the roof and outside walls werewarmer than others. As still images from the in-frared scans show, see Appendix, infra, no detailsregarding the interior of petitioner's home were re-vealed. Unlike an x-ray scan, or other possible“through-the-wall” techniques, the detection of in-frared radiation emanating from the home did notaccomplish “an unauthorized physical penetrationinto the premises,” Silverman v. United States, 365U.S. 505, 509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961),

nor did it “obtain information that it could not haveobtained by observation from outside the curtilageof the house,” United States v. Karo, 468 U.S. 705,715, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).

Indeed, the ordinary use of the senses might enablea neighbor or passerby to notice the heat emanatingfrom a building, particularly if it is vented, as wasthe case here. Additionally, any member of the pub-lic might notice that one part of a house is warmerthan another part or a nearby building if, for ex-ample, rainwater evaporates or snow melts at dif-ferent rates across its surfaces. Such use of thesenses would not convert into an unreasonablesearch if, instead, an adjoining neighbor allowed anofficer onto her property to verify her perceptionswith a sensitive thermometer. Nor, in my view,does such observation become an unreasonablesearch if made from a distance with the aid of adevice that merely discloses that the exterior of onehouse, or one area of the house, is much warmerthan another. Nothing more occurred in this case.

Thus, the notion that heat emissions from the out-side of a dwelling are a private matter implicatingthe protections of the Fourth Amendment (the textof which guarantees the right of people “to be se-cure in their ... houses” against unreasonablesearches and seizures (emphasis added)) is not onlyunprecedented but also quite difficult to take seri-ously. Heat waves, like aromas that are generated ina kitchen, or *44 in a laboratory or opium den,enter the public domain if and when they leave abuilding. A subjective expectation that they wouldremain private is not only implausible but alsosurely not “one that society is prepared to recognizeas ‘reasonable.’ ” Katz, 389 U.S., at 361, 88 S.Ct.507 (Harlan, J., concurring).

To be sure, the homeowner has a reasonable ex-pectation of privacy concerning what takes placewithin the home, and the Fourth Amendment's pro-tection against physical invasions of the homeshould apply to their functional equivalent. But the



equipment in this case did not penetrate the walls ofpetitioner's home, and while it did pick up “detailsof the home” that were exposed to the public, ante,at 2045, it did not obtain “any information regard-ing the interior of the home,” ante, at 2043(emphasis added). In the Court's own words, basedon what the thermal imager “showed” regarding theoutside of petitioner's home, the officers“concluded” that petitioner was engaging in illegalactivity inside the home. Ante, at 2041. It would bequite absurd to characterize their thought processesas “searches,” regardless of whether they inferred(rightly) that petitioner was growing marijuana inhis house, or (wrongly) that “the lady of the house[was taking] her daily sauna and bath.” Ante, at2045. In either case, the only conclusions the of-ficers reached concerning the interior of the homewere at least as indirect as those that might have**2049 been inferred from the contents of dis-carded garbage, see California v. Greenwood, 486U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), orpen register data, see Smith v. Maryland, 442 U.S.735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), or, as inthis case, subpoenaed utility records, see 190 F.3d1041, 1043 (C.A.9 1999). For the first time in itshistory, the Court assumes that an inference canamount to a Fourth Amendment violation. See ante,at 2044-2045.FN3

FN3. Although the Court credits us withthe “novel proposition that inference insu-lates a search,” ante, at 2044, our pointsimply is that an inference cannot be asearch, contrary to the Court's reasoning.See supra, at 2048 and this page. Thus, theCourt's use of United States v. Karo, 468U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530(1984), to refute a point we do not makeunderscores the fact that the Court has noreal answer (either in logic or in law) tothe point we do make. Of course, Karo it-self does not provide any support for theCourt's view that inferences can amount to

unconstitutional searches. The illegality inthat case was “the monitoring of a beeperin a private residence” to obtain informa-tion that “could not have [been] obtainedby observation from outside,” id., at714-715, 104 S.Ct. 3296, rather than anythought processes that flowed from suchmonitoring.

*45 Notwithstanding the implications of today's de-cision, there is a strong public interest in avoidingconstitutional litigation over the monitoring ofemissions from homes, and over the inferencesdrawn from such monitoring. Just as “the policecannot reasonably be expected to avert their eyesfrom evidence of criminal activity that could havebeen observed by any member of the public,”Greenwood, 486 U.S., at 41, 108 S.Ct. 1625, so toopublic officials should not have to avert their sensesor their equipment from detecting emissions in thepublic domain such as excessive heat, traces ofsmoke, suspicious odors, odorless gases, airborneparticulates, or radioactive emissions, any of whichcould identify hazards to the community. In myjudgment, monitoring such emissions with“sense-enhancing technology,” ante, at 2043, anddrawing useful conclusions from such monitoring,is an entirely reasonable public service.

On the other hand, the countervailing privacy in-terest is at best trivial. After all, homes generallyare insulated to keep heat in, rather than to preventthe detection of heat going out, and it does notseem to me that society will suffer from a rule re-quiring the rare homeowner who both intends to en-gage in uncommon activities that produce ex-traordinary amounts of heat, and wishes to concealthat production from outsiders, to make sure thatthe surrounding area is well insulated. Cf. UnitedStates v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct.1652, 80 L.Ed.2d 85 (1984) (“The concept of an in-terest in privacy that society is prepared to recog-nize as reasonable is, by its very nature, criticallydifferent from the mere expectation, however well



*46 justified, that certain facts will not come to theattention of the authorities”). The interest in con-cealing the heat escaping from one's house pales insignificance to “the chief evil against which thewording of the Fourth Amendment is directed,” the“physical entry of the home,” United States v.United States Dist. Court for Eastern Dist. ofMich., 407 U.S. 297, 313, 92 S.Ct. 2125, 32L.Ed.2d 752 (1972), and it is hard to believe that itis an interest the Framers sought to protect in ourConstitution.

Since what was involved in this case was nothingmore than drawing inferences from off-the-wallsurveillance, rather than any “through-the-wall”surveillance, the officers' conduct did not amount toa search and was perfectly reasonable.FN4

FN4. This view comports with that of allthe Courts of Appeals that have resolvedthe issue. See 190 F.3d 1041 (C.A.9 1999);United States v. Robinson, 62 F.3d 1325(C.A.11 1995) (upholding warrantless useof thermal imager); United States v. Myers,46 F.3d 668 (C.A.7 1995) (same); UnitedStates v. Ishmael, 48 F.3d 850 (C.A.51995) (same); United States v. Pinson, 24F.3d 1056 (C.A.8 1994) (same). But seeUnited States v. Cusumano, 67 F.3d 1497(C.A.10 1995) (warrantless use of thermalimager violated Fourth Amendment), va-cated and decided on other grounds, 83F.3d 1247 (C.A.10 1996) (en banc).

**2050 II

Instead of trying to answer the question whether theuse of the thermal imager in this case was even ar-guably unreasonable, the Court has fashioned a rulethat is intended to provide essential guidance forthe day when “more sophisticated systems” gain the“ability to ‘see’ through walls and other opaquebarriers.” Ante, at 2044, and n. 3. The newly minted

rule encompasses “obtaining [1] by sense-en-hancing technology [2] any information regardingthe interior of the home [3] that could not otherwisehave been obtained without physical intrusion intoa constitutionally protected area ... [4] at leastwhere (as here) the technology in question is not ingeneral public use.” Ante, at 2043 (internal quota-tion marks omitted). In my judgment, the *47Court's new rule is at once too broad and too nar-row, and is not justified by the Court's explanationfor its adoption. As I have suggested, I would noterect a constitutional impediment to the use ofsense-enhancing technology unless it provides itsuser with the functional equivalent of actual pres-ence in the area being searched.

Despite the Court's attempt to draw a line that is“not only firm but also bright,” ante, at 2046, thecontours of its new rule are uncertain because itsprotection apparently dissipates as soon as the rel-evant technology is “in general public use,” ante, at2043. Yet how much use is general public use is noteven hinted at by the Court's opinion, which makesthe somewhat doubtful assumption that the thermalimager used in this case does not satisfy that cri-terion.FN5 In any event, putting aside its lack ofclarity, this criterion is somewhat perverse becauseit seems likely that the threat to privacy will grow,rather than recede, as the use of intrusive equip-ment becomes more readily available.

FN5. The record describes a device thatnumbers close to a thousand manufacturedunits; that has a predecessor numbering inthe neighborhood of 4,000 to 5,000 units;that competes with a similar product num-bering from 5,000 to 6,000 units; and thatis “readily available to the public” forcommercial, personal, or law enforcementpurposes, and is just an 800-number awayfrom being rented from “half a dozen na-tional companies” by anyone who wantsone. App. 18. Since, by virtue of theCourt's new rule, the issue is one of first



impression, perhaps it should order anevidentiary hearing to determine whetherthese facts suffice to establish “generalpublic use.”

It is clear, however, that the category of“sense-enhancing technology” covered by the newrule, ibid., is far too broad. It would, for example,embrace potential mechanical substitutes for dogstrained to react when they sniff narcotics. But inUnited States v. Place, 462 U.S. 696, 707, 103 S.Ct.2637, 77 L.Ed.2d 110 (1983), we held that a dogsniff that “discloses only the presence or absence ofnarcotics” does “not constitute a ‘search’ within themeaning of the Fourth Amendment,” and it mustfollow that sense-enhancing equipment that identi-fies nothing but illegal *48 activity is not a searcheither. Nevertheless, the use of such a device wouldbe unconstitutional under the Court's rule, as wouldthe use of other new devices that might detect theodor of deadly bacteria or chemicals for making anew type of high explosive, even if the devices(like the dog sniffs) are “so limited both in the man-ner in which” they obtain information and “in thecontent of the information” they reveal. Ibid. Ifnothing more than that sort of information could beobtained by using the devices in a public place tomonitor emissions from a house, then their usewould be no more objectionable than the use of thethermal imager in this case.

The application of the Court's new rule to “any in-formation regarding the interior of the home,” ante,at 2043, is also unnecessarily broad. If it takes sens-itive equipment to detect an odor that identifiescriminal conduct and nothing else, the fact that theodor emanates from the interior of a **2051 homeshould not provide it with constitutional protection.See supra, at 2050 and this page. The criterion,moreover, is too sweeping in that information“regarding” the interior of a home apparently is notjust information obtained through its walls, but alsoinformation concerning the outside of the buildingthat could lead to (however many) inferences

“regarding” what might be inside. Under that ex-pansive view, I suppose, an officer using an in-frared camera to observe a man silently entering theside door of a house at night carrying a pizza mightconclude that its interior is now occupied bysomeone who likes pizza, and by doing so the of-ficer would be guilty of conducting an unconstitu-tional “search” of the home.

Because the new rule applies to information regard-ing the “interior” of the home, it is too narrow aswell as too broad. Clearly, a rule that is designed toprotect individuals from the overly intrusive use ofsense-enhancing equipment should not be limited toa home. If such equipment *49 did provide its userwith the functional equivalent of access to a privateplace-such as, for example, the telephone booth in-volved in Katz, or an office building-then the ruleshould apply to such an area as well as to a home.See Katz, 389 U.S., at 351, 88 S.Ct. 507 (“[T]heFourth Amendment protects people, not places”).

The final requirement of the Court's new rule, thatthe information “could not otherwise have been ob-tained without physical intrusion into a constitu-tionally protected area,” ante, at 2043 (internal quo-tation marks omitted), also extends too far as theCourt applies it. As noted, the Court effectivelytreats the mental process of analyzing data obtainedfrom external sources as the equivalent of a physic-al intrusion into the home. See supra, at 2048-2049.As I have explained, however, the process of draw-ing inferences from data in the public domainshould not be characterized as a search.

The two reasons advanced by the Court as justifica-tions for the adoption of its new rule are both un-persuasive. First, the Court suggests that its rule iscompelled by our holding in Katz, because in thatcase, as in this, the surveillance consisted of noth-ing more than the monitoring of waves emanatingfrom a private area into the public domain. Seeante, at 2044. Yet there are critical differencesbetween the cases. In Katz, the electronic listening



device attached to the outside of the phone boothallowed the officers to pick up the content of theconversation inside the booth, making them thefunctional equivalent of intruders because theygathered information that was otherwise availableonly to someone inside the private area; it would beas if, in this case, the thermal imager presented aview of the heat-generating activity inside petition-er's home. By contrast, the thermal imager here dis-closed only the relative amounts of heat radiatingfrom the house; it would be as if, in Katz, the listen-ing device disclosed only the relative*50 volume ofsound leaving the booth, which presumably wasdiscernible in the public domain.FN6 Surely, thereis a significant difference between the general andwell-settled expectation that strangers will not havedirect access to the contents of private communica-tions, on the one hand, and the rather theoretical ex-pectation that an occasional homeowner wouldeven care if anybody noticed the relative amountsof heat emanating from the walls of his house, onthe other. It is pure hyperbole for the Court to sug-gest that refusing to extend the holding of Katz tothis case would leave the homeowner at the mercyof “technology that could discern all human activityin the home.” Ante, at 2044.

FN6. The use of the latter device would beconstitutional given Smith v. Maryland,442 U.S. 735, 741, 99 S.Ct. 2577, 61L.Ed.2d 220 (1979), which upheld the useof pen registers to record numbers dialedon a phone because, unlike “the listeningdevice employed in Katz ... pen registersdo not acquire the contents of communica-tions.”

**2052 Second, the Court argues that the permiss-ibility of “through-the-wall surveillance” cannotdepend on a distinction between observing“intimate details” such as “the lady of the house[taking] her daily sauna and bath,” and noticingonly “the nonintimate rug on the vestibule floor” or“objects no smaller than 36 by 36 inches.” Ante, at

2045-2046. This entire argument assumes, ofcourse, that the thermal imager in this case could ordid perform “through-the-wall surveillance” thatcould identify any detail “that would previouslyhave been unknowable without physical intrusion.”Ante, at 2046. In fact, the device could not, see n. 1,supra, and did not, see Appendix, infra, enable itsuser to identify either the lady of the house, the rugon the vestibule floor, or anything else inside thehouse, whether smaller or larger than 36 by 36inches. Indeed, the vague thermal images of peti-tioner's home that are reproduced in the Appendixwere submitted by him to the District Court as partof an expert report raising the question whether thedevice could even take “accurate, consistent in-frared images” of the *51 outside of his house. De-fendant's Exh. 107, p. 4. But even if the devicecould reliably show extraordinary differences in theamounts of heat leaving his home, drawing the in-ference that there was something suspicious occur-ring inside the residence-a conclusion that officersfar less gifted than Sherlock Holmes would readilydraw-does not qualify as “through-the-wall surveil-lance,” much less a Fourth Amendment violation.

III

Although the Court is properly and commendablyconcerned about the threats to privacy that mayflow from advances in the technology available tothe law enforcement profession, it has unfortunatelyfailed to heed the tried and true counsel of judicialrestraint. Instead of concentrating on the rathermundane issue that is actually presented by the casebefore it, the Court has endeavored to craft an all-encompassing rule for the future. It would be farwiser to give legislators an unimpeded opportunityto grapple with these emerging issues rather than toshackle them with prematurely devised constitu-tional constraints.

I respectfully dissent.



**2053 *52 APPENDIX

U.S.Or.,2001.Kyllo v. U.S.533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, 01Cal. Daily Op. Serv. 4749, 2001 Daily JournalD.A.R. 5879, 14 Fla. L. Weekly Fed. S 329, 2001DJCAR 2926

END OF DOCUMENT



Supreme Court of Nebraska.STATE of Nebraska, appellee,

v.Eddie R. ORTIZ, Jr., appellant.

No. S-98-568.

Oct. 1, 1999.

Defendant was convicted in the District Court,Douglas County, John D. Hartigan, Jr., J., of unlaw-ful possession with intent to deliver controlled sub-stances. Defendant appealed, challenging denial ofhis motion of suppress evidence obtained in searchof his apartment. The Supreme Court, Lerman-Miller, J., held that: (1) defendant had a legitimateexpectation of some measure of privacy in the hall-way outside his apartment; (2) anonymous tip didnot give police officers reasonable suspicion to goto hallway outside of defendant's apartment for pur-pose of using drug detection dog to sniff for illegaldrugs; and (3) without consideration of canine alert,remainder of affidavit supporting search warrantdid not provide a sufficient basis for issuance ofwarrant.

Reversed and remanded for a new trial.

Connolly, J., concurred in the result and filed anopinion.

West Headnotes

[1] Criminal Law 110 1158.12

110 Criminal Law110XXIV Review110XXIV(O) Questions of Fact and Findings110k1158.8 Evidence

110k1158.12 k. Evidence WrongfullyObtained. Most Cited Cases(Formerly 110k1158(4))

Trial court's ruling on a motion to suppress evid-ence, apart from determinations of reasonable sus-picion to conduct investigatory stops and probablecause to perform warrantless searches, is to be up-held on appeal unless its findings of fact are clearlyerroneous.

[2] Criminal Law 110 1158.12

110 Criminal Law110XXIV Review110XXIV(O) Questions of Fact and Findings110k1158.8 Evidence

110k1158.12 k. Evidence WrongfullyObtained. Most Cited Cases(Formerly 110k1158(4))

In reviewing a trial court's ruling on a motion tosuppress evidence, an appellate court does not re-weigh the evidence or resolve conflicts in the evid-ence, but, rather, recognizes the trial court as thefinder of fact and takes into consideration that it ob-served the witnesses.

[3] Criminal Law 110 1139

110 Criminal Law110XXIV Review110XXIV(L) Scope of Review in General110XXIV(L)13 Review De Novo

110k1139 k. In General. Most CitedCasesTo the extent questions of law are involved, an ap-pellate court is obligated to reach conclusions inde-pendent of the decisions reached by the courts be-low.


349 Searches and Seizures349II Warrants

349k111 k. Factual Showing, in General.Most Cited CasesSearch warrant, to be valid, must be supported by

600 N.W.2d 805 Page 1257 Neb. 784, 600 N.W.2d 805(Cite as: 257 Neb. 784, 600 N.W.2d 805)


an affidavit which establishes probable cause.U.S.C.A. Const.Amend. 4.


349 Searches and Seizures349II Warrants349k113 Probable or Reasonable Cause

349k113.1 k. In General. Most CitedCases“Probable cause” sufficient to justify issuance of asearch warrant means a fair probability that contra-band or evidence of a crime will be found.U.S.C.A. Const.Amend. 4.



349k121 Time for Application or Issuance;Staleness

349k121.1 k. In General. Most CitedCasesProof of probable cause justifying issuance of asearch warrant generally must consist of facts soclosely related to the time of issuance of the war-rant as to justify a finding of probable cause at thattime. U.S.C.A. Const.Amend. 4.



349k113.1 k. In General. Most CitedCasesProbable cause to search is determined by a stand-ard of objective reasonableness, that is, whetherknown facts and circumstances are sufficient towarrant a person of reasonable prudence in a beliefthat contraband or evidence of a crime will befound. U.S.C.A. Const.Amend. 4.


349 Searches and Seizures349VI Judicial Review or Determination

349k191 k. In General; Conclusiveness ofWarrant in General. Most Cited CasesIn reviewing the strength of an affidavit submittedas a basis for finding probable cause to issue asearch warrant, an appellate court applies a “totalityof the circumstances” rule whereby the question iswhether, under the totality of the circumstances il-lustrated by the affidavit, the issuing magistrate hada substantial basis for finding that the affidavit es-tablished probable cause. U.S.C.A. Const.Amend.4.



349k191 k. In General; Conclusiveness ofWarrant in General. Most Cited CasesAs a general rule, an appellate court is restricted toconsideration of the information and circumstancesfound within the four corners of the affidavit sup-porting issuance of a search warrant.


349 Searches and Seizures349VI Judicial Review or Determination349k192 Presumptions and Burden of Proof

349k193 k. Search Under Warrant. MostCited CasesSearch conducted pursuant to a search warrant sup-ported by probable cause is generally considered tobe reasonable, and it is a defendant's burden toprove that the search or seizure was unreasonable.U.S.C.A. Const.Amend. 4.



349k113.1 k. In General. Most CitedCases



Where an affidavit in support of a search warrant isinadequate to establish probable cause, the searchwarrant is defective under the Fourth Amendment.U.S.C.A. Const.Amend. 4.

[12] Criminal Law 110 394.4(6)

110 Criminal Law110XVII Evidence110XVII(I) Competency in General110k394 Evidence Wrongfully Obtained110k394.4 Unlawful Search or Seizure

110k394.4(5) Search Under War-rant

110k394.4(6) k. Affidavit orComplaint; Probable Cause. Most Cited CasesWhere a search is conducted pursuant to a constitu-tionally defective warrant, the evidence obtained inthe search must be excluded.


349 Searches and Seizures349II Warrants349k105 Complaint, Application or Affidavit

349k105.1 k. In General. Most CitedCasesNot every defect in an affidavit supporting a searchwarrant renders the warrant defective or the seizuremade pursuant to the warrant unconstitutional.U.S.C.A. Const.Amend. 4.



349k111 k. Factual Showing, in General.Most Cited CasesAlthough it may be necessary to excise certain mat-ter from an affidavit in support of a search warrant,if the remainder of the affidavit is sufficient to es-tablish probable cause, the warrant issued uponsuch remaining information in the affidavit will beproper and the results of the search pursuant to thewarrant are constitutionally obtained. U.S.C.A.

Const.Amend. 4.



349k23 k. Fourth Amendment and Reason-ableness in General. Most Cited CasesFreedom from unreasonable searches and seizuresis guaranteed the Fourth Amendment and its stateconstitution counterpart. U.S.C.A. Const.Amend. 4;Const. Art. 1, § 7.



349k23 k. Fourth Amendment and Reason-ableness in General. Most Cited CasesFourth Amendment and its state constitution coun-terpart prohibit only unreasonable searches andseizures; they do not protect citizens from all gov-ernmental intrusion, but only from unreasonable in-trusions. U.S.C.A. Const.Amend. 4; Const. Art. 1, §7.

[17] Arrest 35 63.5(4)

35 Arrest35II On Criminal Charges

35k63.5 Investigatory Stop or Stop-And-Frisk

35k63.5(3) Grounds for Stop or Investiga-tion

35k63.5(4) k. Reasonableness; Reas-onable or Founded Suspicion, Etc. Most CitedCasesReasonable suspicion, commonly required to sup-port a seizure or detention, is a quantum of factsless than probable cause, commonly required tosupport a search

[18] Arrest 35 63.5(4)

35 Arrest



35II On Criminal Charges35k63.5 Investigatory Stop or Stop-

And-Frisk35k63.5(3) Grounds for Stop or Investiga-

tion35k63.5(4) k. Reasonableness; Reas-

onable or Founded Suspicion, Etc. Most CitedCasesWhere the police have reasonable suspicion, theymay pursue their investigation either to confirmtheir suspicion or to dispel the suspicion that crimeis afoot.



349k26 k. Expectation of Privacy. MostCited CasesIndividual's Fourth Amendment privacy interestsmay extend in a limited manner beyond the fourwalls of the home, depending on the facts, includ-ing some expectation of privacy to be free from po-lice canine sniffs for illegal drugs in the hallwayoutside an apartment or at the threshold of a resid-ence. U.S.C.A. Const.Amend. 4.



349k26 k. Expectation of Privacy. MostCited CasesDefendant had a legitimate expectation of somemeasure of privacy in the hallway outside his apart-ment, for purposes of the Fourth Amendment andits state constitution counterpart. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.



349k25 Persons, Places and Things Protected349k26 k. Expectation of Privacy. Most

Cited CasesTo determine whether an individual has an interestprotected by the Fourth Amendment and it stateconstitution counterpart one must determine wheth-er an individual has a legitimate or justifiable ex-pectation of privacy in the place subjected to caninescrutiny; the individual must have exhibited an ac-tual expectation of privacy, and the expectationmust be one that society is prepared to recognize asreasonable. U.S.C.A. Const.Amend. 4; Const. Art.1, § 7.



349k26 k. Expectation of Privacy. MostCited CasesReasonable expectations of privacy vary accordingto the context of the case. U.S.C.A. Const.Amend.4.



349k26 k. Expectation of Privacy. MostCited CasesAssessment of an individual's privacy interest inhallway outside of his apartment requires evalu-ation of whether, under the circumstances, the areaof the hallway should be placed under the home's“umbrella” of Fourth Amendment protection.U.S.C.A. Const.Amend. 4.



349k26 k. Expectation of Privacy. Most



Cited CasesThere is some measure of privacy at the thresholdof an apartment dwelling, for Fourth Amendmentpurposes. U.S.C.A. Const.Amend. 4.



349k26 k. Expectation of Privacy. MostCited CasesThat which a law enforcement officer detects usinghis or her unaided senses while lawfully presentdoes not violate Fourth Amendment or state consti-tutional principles, because that which is voluntar-ily exposed to the general public and observablefrom an unprotected area without using sense-enhancing devices is not part of a person's privateaffairs. U.S.C.A. Const.Amend. 4; Const. Art. 1, §7.


349 Searches and Seizures349I In General349k13 What Constitutes Search or Seizure349k22 k. Scent; Use of Dogs. Most Cited

CasesBy using a canine to sniff for illegal drugs in a hall-way outside an apartment, the police engage an in-vestigative technique by which they are able to ob-tain information regarding the contents of a placethat has traditionally been accorded a heightenedexpectation of privacy; while such an investigativetechnique may be minimally intrusive, it neverthe-less implicates the Fourth Amendment and stateconstitution counterpart, and requires independentreasonable suspicion. U.S.C.A. Const.Amend. 4;Const. Art. 1, § 7.


96H Controlled Substances96HIV Searches and Seizures

96HIV(C) Search Under Warrant96Hk144 Affidavits, Complaints, and

Evidence for Issuance of Warrants96Hk146 k. Probable Cause in Gener-

al. Most Cited Cases(Formerly 138k188(2) Drugs and Narcotics)

Investigative tool of the canine sniff at thethreshold of a dwelling may be used to build a caseof probable cause for issuance of a search warrantwhere it is preceded by information amounting toreasonable, articulable suspicion. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.



349k23 k. Fourth Amendment and Reason-ableness in General. Most Cited Cases“Reasonable suspicion” entails some minimal levelof objective justification which is more than an in-choate and unparticularized suspicion or hunch, butless than the level of suspicion required for a find-ing of probable cause. U.S.C.A. Const.Amend. 4;Const. Art. 1, § 7.



349k23 k. Fourth Amendment and Reason-ableness in General. Most Cited CasesReasonable suspicion, like probable cause, dependsupon both the content of information possessed bypolice and its degree of reliability; both factors areconsidered in the totality of the circumstances thatmust be taken into account to evaluate whetherreasonable suspicion exists. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.

[30] Controlled Substances 96H 148(4)

96H Controlled Substances96HIV Searches and Seizures96HIV(C) Search Under Warrant



96Hk144 Affidavits, Complaints, andEvidence for Issuance of Warrants

96Hk148 Informants96Hk148(4) k. Confidential or Un-

named Informants. Most Cited Cases(Formerly 138k188(7) Drugs and Narcotics)

Uncorroborated allegation from an anonymoussource whose reliability was unknown to police thatdefendant had been actively distributing cocainefrom his apartment “within the past year” was in-sufficient, for purposes of Fourth Amendment andits state constitution counterpart, to give police areasonable, articulable suspicion to bring drug de-tection dog into the hallway outside of defendant'sapartment to conduct the canine sniff, where of-ficers did not conduct a meaningful investigation orotherwise suspect defendant was engaged in crimin-al conduct. U.S.C.A. Const.Amend. 4; Const. Art.1, § 7.

[31] Controlled Substances 96H 148(4)

96H Controlled Substances96HIV Searches and Seizures96HIV(C) Search Under Warrant

96Hk144 Affidavits, Complaints, andEvidence for Issuance of Warrants

96Hk148 Informants96Hk148(4) k. Confidential or Un-

named Informants. Most Cited Cases(Formerly 138k188(7) Drugs and Narcotics)

Absent information which police generated by drugdetection dog's alert in the hallway outside defend-ant's apartment, remainder of the affidavit support-ing issuance of search warrant for apartment, whichincluded only uncorroborated allegation from ananonymous source whose reliability was unknownto police that defendant had been actively distribut-ing cocaine from his apartment “within the pastyear,” defendant's history, and certain innocuousfacts about his life, did not amount to probablecause. U.S.C.A. Const.Amend. 4; Const. Art. 1, § 7.



349k115 Competency of Information;Hearsay

349k118 k. Anonymous or ConfidentialInformants. Most Cited CasesWhen a search warrant is obtained on the strengthof information received from an informant, the affi-davit in support of the issuance of the warrant mustset forth facts demonstrating the basis of the in-formant's knowledge of criminal activity.




349k117 k. Reliability or Credibility; Cor-roboration. Most Cited CasesAffidavit in support of the issuance of the warrantmust either establish the informant's credibility orset forth a police officer's independent investigationof the information supplied by the informant.U.S.C.A. Const.Amend. 4.




349k117 k. Reliability or Credibility; Cor-roboration. Most Cited CasesIf an affidavit does not establish that an informantis reliable, a search warrant issued solely upon theinformation supplied by the informant is invalid.U.S.C.A. Const.Amend. 4.





CasesUnder the federal and state constitutions, a caninesniff for illegal drugs conducted at the threshold ofa dwelling detects information regarding the con-tents inside the home, and an individual has a legit-imate expectation of privacy inside the home evenas to these unworthy contents. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.



349k26 k. Expectation of Privacy. MostCited CasesUnder the Fourth Amendment and its state constitu-tion counterpart, an occupant has a legitimate ex-pectation of some measure of privacy in the hall-way immediately outside his or her apartment or atthe threshold of his or her home. U.S.C.A.Const.Amend. 4.


96H Controlled Substances96HIV Searches and Seizures96HIV(B) Search Without Warrant96Hk137 k. Odor Detection; Use of Dogs.

Most Cited Cases(Formerly 138k185.5 Drugs and Narcotics)

Before a drug-detecting canine can be deployed totest the threshold of a home, police officers mustpossess at a minimum reasonable, articulable suspi-cion that the location to be tested contains illegaldrugs. U.S.C.A. Const.Amend. 4; Const. Art. 1, § 7.

**809 Syllabus by the Court

*784 1. Motions to Suppress: InvestigativeStops: Warrantless Searches: Probable Cause:Judgments: Appeal and Error. A trial court's rul-ing on a motion to suppress evidence, apart fromdeterminations of reasonable suspicion to conductinvestigatory stops and probable cause to perform

warrantless searches, is to be upheld on appeal un-less its findings of fact are clearly erroneous. Inmaking this determination, an appellate court doesnot reweigh the evidence or resolve conflicts in theevidence, but, rather, recognizes the trial court asthe finder of fact and takes into consideration that itobserved the witnesses.

2. Judgments: Appeal and Error. To the extentquestions of law are involved, an appellate court isobligated to reach conclusions independent of thedecisions reached by the courts below.

3. Search Warrants: Affidavits: Probable Cause:Proof: Time. A search warrant, to be valid, mustbe supported by an affidavit which establishesprobable cause. Probable cause sufficient to justifyissuance of a search warrant means a fair probabil-ity that contraband or evidence of a crime will befound. Proof of probable cause justifying issuanceof a search warrant generally must consist of factsso closely related to the time of issuance of the war-rant as to justify a finding of probable cause at thattime.

4. Probable Cause. Probable cause to search is de-termined by a standard of objective reasonableness,that is, whether known facts and circumstances aresufficient to warrant a person of reasonableprudence in a belief that contraband or evidence ofa crime will be found.

*785 5. Search Warrants: Affidavits: ProbableCause: Appeal and Error. In reviewing thestrength of an affidavit submitted as a basis forfinding probable cause to issue a search warrant, anappellate court applies a “totality of the circum-stances” rule whereby the question is **810 wheth-er, under the totality of the circumstances illus-trated by the affidavit, the issuing magistrate had asubstantial basis for finding that the affidavit estab-lished probable cause.

6. Search and Seizure: Search Warrants: Prob-



able Cause: Proof. A search conducted pursuant toa search warrant supported by probable cause isgenerally considered to be reasonable, and it is adefendant's burden to prove that the search orseizure was unreasonable.

7. Constitutional Law: Search and Seizure:Search Warrants: Affidavits: Probable Cause.Where an affidavit in support of a search warrant isinadequate to establish probable cause, the searchwarrant is constitutionally defective. Where asearch is conducted pursuant to a constitutionallydefective warrant, the evidence obtained in thesearch must be excluded.

8. Constitutional Law: Search and Seizure:Search Warrants: Affidavits: Probable Cause.Not every defect in an affidavit renders the warrantdefective or the seizure made pursuant to the war-rant unconstitutional. Although it may be necessaryto excise certain matter from an affidavit, if the re-mainder of the affidavit is sufficient to establishprobable cause, the warrant issued upon such re-maining information in the affidavit will be properand the results of the search pursuant to the warrantare constitutionally obtained.

9. Constitutional Law: Search and Seizure. InNebraska, freedom from unreasonable searches andseizures is guaranteed by U.S. Const. amend. IVand Neb. Const. art. I, § 7.

10. Constitutional Law: Search and Seizure. TheFourth Amendment and Neb. Const. art. I, § 7, pro-hibit only unreasonable searches and seizures.These constitutional provisions do not protect cit-izens from all governmental intrusion, but onlyfrom unreasonable intrusions.

11. Police Officers and Sheriffs: Search andSeizure: Probable Cause. Reasonable suspicion,commonly required to support a seizure or deten-tion, is a quantum of facts less than probable cause,commonly required to support a search. Where the

police have reasonable suspicion, they may pursuetheir investigation either to confirm their suspicionor to dispel the suspicion that crime is afoot.

12. Constitutional Law: Police Officers andSheriffs: Search and Seizure: Controlled Sub-stances. An individual's Fourth Amendment pri-vacy interests may extend in a limited manner bey-ond the four walls of the home, depending on thefacts, including some expectation of privacy to befree from police canine sniffs for illegal drugs inthe hallway outside an apartment or at the thresholdof a residence.

13. Constitutional Law: Search and Seizure. Todetermine whether an individual has an interest pro-tected by the Fourth Amendment and Neb. Const.art. I, § 7, one must determine whether an individu-al has a legitimate or justifiable expectation of pri-vacy in the place subjected to canine scrutiny. Or-dinarily, two inquiries are required. First, the indi-vidual must have exhibited an actual (subjective)expectation of privacy, and second, the expectationis one that society is prepared to recognize as reas-onable.

14. Constitutional Law: Search and Seizure.Reasonable expectations of privacy vary accordingto the context of the case.

15. Constitutional Law: Search and Seizure.There is some measure of privacy at the thresholdof an apartment dwelling.

*786 16. Constitutional Law: Police Officers andSheriffs: Search and Seizure. That which a lawenforcement officer detects using his or her unaidedsenses while lawfully present does not violateFourth Amendment or Nebraska constitutional prin-ciples, because that which is voluntarily exposed tothe general public and **811 observable from anunprotected area without using sense-enhancingdevices is not part of a person's private affairs.

17. Constitutional Law: Police Officers and



Sheriffs: Search and Seizure. By using a canine tosniff for illegal drugs in a hallway outside an apart-ment, the police engage an investigative techniqueby which they are able to obtain information re-garding the contents of a place that has traditionallybeen accorded a heightened expectation of privacy.While such an investigative technique may be min-imally intrusive, it nevertheless implicates theFourth Amendment and Neb. Const. art. I, § 7, andrequires independent reasonable suspicion.

18. Search and Seizure. The investigative tool ofthe canine sniff at the threshold of a dwelling maybe used where it is preceded by informationamounting to reasonable, articulable suspicion.

19. Search and Seizure: Probable Cause: Wordsand Phrases. Reasonable suspicion entails someminimal level of objective justification which ismore than an inchoate and unparticularized suspi-cion or hunch, but less than the level of suspicionrequired for a finding of probable cause.

20. Police Officers and Sheriffs: Probable Cause.Reasonable suspicion, like probable cause, dependsupon both the content of information possessed bypolice and its degree of reliability. Both factors areconsidered in the totality of the circumstances thatmust be taken into account to evaluate whetherreasonable suspicion exists.

21. Police Officers and Sheriffs: Search War-rants: Affidavits. When a search warrant is ob-tained on the strength of information received froman informant, the affidavit in support of the issu-ance of the warrant must set forth facts demonstrat-ing the basis of the informant's knowledge of crim-inal activity. The affidavit must also either establishthe informant's credibility or set forth a police of-ficer's independent investigation of the informationsupplied by the informant.

22. Search Warrants: Affidavits. If an affidavitdoes not establish that an informant is reliable, a

search warrant issued solely upon the informationsupplied by the informant is invalid.Glenn A. Shapiro, of Gallup & Schaefer, Omaha,for appellant.

Don Stenberg, Attorney General, and Ron Moravec,for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GER-RARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

*787 MILLER-LERMAN, J.

I. NATURE OF CASE

Eddie R. Ortiz, Jr., was convicted of two counts ofunlawful possession with intent to deliver con-trolled substances and sentenced accordingly. Ortizappeals from the trial court's order admitting evid-ence over his objection, which evidence Ortizclaims was obtained in violation of U.S. Const.amend. IV and Neb. Const. art. I, § 7.

As explained more fully below, the canine sniff forillegal drugs which was conducted at the thresholdto Ortiz' apartment where Ortiz had a legitimate ex-pectation of some measure of privacy violated theFourth Amendment and Neb. Const. art. I, § 7. Al-though a canine may be deployed to test for illegaldrugs in some cases, doing so at the threshold of adwelling on less than reasonable, articulable suspi-cion is improper. In this case, the information ob-tained by the alert of the canine must be excisedfrom the affidavit in support of the search warrant.The residue of the affidavit did not amount to prob-able cause for the issuance of a search warrant, andthe contraband seized pursuant to the defectivesearch warrant must, therefore, be suppressed.

**812We conclude on the facts of this case that thesearch of Ortiz' apartment was constitutionallyflawed and that the contraband recovered should



have been excluded. We reverse, and remand for anew trial consistent with this opinion.

II. STATEMENT OF FACTS

Sometime during the early evening of August 7,1997, Omaha police received a telephone call froma concerned citizen (C/C) who told police that sheor he “knew of” Ortiz and alleged that Ortiz “hasbeen active in distributing cocaine from his apart-ment within the past year.” Police were given Ortiz'address and a general physical description of Ortizby C/C. The record indicates that at the time thecall was received, Ortiz was not a suspect.

Police verified that Ortiz had lived at the addressgiven by the caller for about 2 years. The policechecked their internal records, which showed thatOrtiz had a prior conviction in 1991 for possessionof a controlled substance, for which he had beensentenced to a 6-month term of imprisonment, andthat a concurrent charge had been dismissed. Thepolice records also *788 showed that Ortiz wascharged in early 1994 with possession of marijuanaand hashish with intent to deliver but that thecharges were dropped.

At about 8:45 p.m. on the same evening, police of-ficers took Pogo, a police dog specially trained todetect the scents of marijuana, cocaine, cocainebase, methamphetamine, amphetamine, and heroininto the hallway outside Ortiz' apartment to performa canine sniff of the area. The officers ran Pogo inthe hallway outside Ortiz' apartment, and Pogo“alerted” by the door to Ortiz' apartment.

On August 8, 1997, officers applied for and ob-tained a “no-knock” daytime search warrant whichentitled them to search the interior of Ortiz' apart-ment. The affidavit and application for search war-rant submitted by the police officers read, in pertin-ent part, as follows:

That the following are the grounds for issuance

of a search warrant for said property and the reas-ons for the Affiant's belief, to-wit:

On Thursday, 7 August 1997 in the eveninghours, Affiant Officer LANG was contacted by aconcerned citizen, hereafter referred to as the C/C. The C/C advised that he/she knew of an indi-vidual by the name of Eddie ORTIZ, described asan Hispanic male, mid-twenties, with a smallbuild, who resides at 809 South 70th Street, Apt.# 6. The C/C stated that ORTIZ is active in dis-tributing cocaine from his apartment. The C/Cstated that ORTIZ has been active in distributingcocaine from his apartment within the past year.The C/C who provided this information did notrequest any type of monetary compensation forproviding this information.

....

On Thursday, 7 August 1997 at approximately2045 hours, Officers KUNZE, LANG, andHENRY of the Narcotics Unit went to the ad-dress of 809 South 70th Street, Apt. 6. OfficerHENRY is the drug canine handler of POGO whowas utilized at the address to detect the presenceof narcotics. Officer HENRY ran POGO by theapartment door at which time POGO alerted tothe presence of narcotics. Officer HENRY ad-vised that POGO *789 made a positive alert forthe presence of narcotics from Apartment # 6.

Another paragraph in the affidavit, not repeatedhere, described Pogo's training, the adequacy ofwhich is not relevant to our resolution of the ap-peal. The affidavit also included the results of theofficers' records check and the fact that Ortiz hadresided at the apartment since July 1, 1995.

Based on the affidavit offered by police, on August8, 1997, a Douglas County Court judge issued awarrant authorizing the officers to search Ortiz'apartment for cocaine and related paraphernalia,cash, and weapons. Shortly thereafter, the



**813 officers executed the warrant. Within Ortiz'apartment, the officers found one-quarter of anounce of cocaine and $6,300 in a kitchen drawer, 4ounces of marijuana and $11,000 in a freezer, and anotebook containing records of suspected drugtransactions.

Ortiz was not present when the officers searchedhis apartment. After the officers concluded thesearch, they left a business card with a telephonenumber at which they could be reached. The policekept Ortiz' apartment under surveillance for an un-specified period, but Ortiz did not appear, and thepolice subsequently abandoned the surveillance.

Ortiz voluntarily presented himself to police on Au-gust 18, 1997. He was charged with possession ofcocaine with intent to deliver, a Class II felony inviolation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue1995) (count I), possession of marijuana with intentto deliver, a Class III felony in violation of §28-416(1)(a) (count II), and possession of money/currency used to facilitate the distribution of illegalnarcotics, a Class IV felony in violation of §28-416(16) (count III).

Ortiz filed a motion to suppress all of the evidenceseized from his apartment, claiming, inter alia, thatthe search warrant was not supported by probablecause. The district court for Douglas County over-ruled the motion on November 6, 1997, finding thatthe affidavit police submitted in support of thesearch warrant adequately described Pogo's trainingand reliability as a drug-sniffing canine and thatPogo's alert in the hallway outside of Ortiz' apart-ment door provided police with probable cause toobtain the search warrant.

*790 On December 23, 1997, the charges againstOrtiz were tried to the court on stipulated facts,with a standing objection by Ortiz to all of the evid-ence seized from his apartment. The prosecutionsubsequently withdrew count III, the charge of pos-session of funds used to facilitate the distribution of

illegal drugs. The trial court found Ortiz guilty ofcounts I and II. On June 3, 1998, Ortiz was sen-tenced to a term of 3 to 5 years' imprisonment oncount I and a term of 2 to 3 years' imprisonment oncount II, to be served consecutively.

III. ASSIGNMENT OF ERROR

Restated, Ortiz claims on appeal that the trial courterred in admitting into evidence the items seizedfrom his apartment as a result of the police search.

IV. STANDARD OF REVIEW

[1][2][3] A trial court's ruling on a motion to sup-press evidence, apart from determinations of reas-onable suspicion to conduct investigatory stops andprobable cause to perform warrantless searches, isto be upheld on appeal unless its findings of fact areclearly erroneous. In making this determination, anappellate court does not reweigh the evidence or re-solve conflicts in the evidence, but, rather, recog-nizes the trial court as the finder of fact and takesinto consideration that it observed the witnesses.State v. Johnson, 256 Neb. 133, 589 N.W.2d 108(1999). To the extent questions of law are involved,an appellate court is obligated to reach conclusionsindependent of the decisions reached by the courtsbelow. Id.

V. ANALYSIS

1. PROBABLE CAUSE TO ISSUE SEARCHWARRANT

[4][5][6][7] A search warrant, to be valid, must besupported by an affidavit which establishes prob-able cause. State v. Johnson, supra. “Probablecause” sufficient to justify issuance of a search war-rant means a fair probability that contraband orevidence of a crime will be found. State v. Craven,



253 Neb. 601, 571 N.W.2d 612 (1997). Proof ofprobable cause justifying issuance of a search war-rant generally must consist of facts so closely re-lated to the time of issuance of the warrant as tojustify a finding*791 of probable cause at **814that time. State v. Johnson, supra. Probable causeto search is determined by a standard of objectivereasonableness, that is, whether known facts andcircumstances are sufficient to warrant a person ofreasonable prudence in a belief that contraband orevidence of a crime will be found. State v. Craven,supra.

[8][9][10] In reviewing the strength of an affidavitsubmitted as a basis for finding probable cause toissue a search warrant, an appellate court applies a“totality of the circumstances” rule whereby thequestion is whether, under the totality of the cir-cumstances illustrated by the affidavit, the issuingmagistrate had a substantial basis for finding thatthe affidavit established probable cause. State v.Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).As a general rule, an appellate court is restricted toconsideration of the information and circumstancesfound within the four corners of the affidavit. Statev. Johnson, supra. A search conducted pursuant to asearch warrant supported by probable cause is gen-erally considered to be reasonable, and it is a de-fendant's burden to prove that the search or seizurewas unreasonable. State v. Swift, 251 Neb. 204, 556N.W.2d 243 (1996).

[11][12][13][14] Where an affidavit in support of asearch warrant is inadequate to establish probablecause, the search warrant is constitutionally defect-ive. State v. Johnson, supra. Where a search is con-ducted pursuant to a constitutionally defective war-rant, the evidence obtained in the search must beexcluded. State v. Fitch, 255 Neb. 108, 582 N.W.2d342 (1998), relying on Wong Sun v. United States,371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).However, not every defect in an affidavit rendersthe warrant defective or the seizure made pursuantto the warrant unconstitutional. Although it may be

necessary to excise certain matter from an affidavit,if the remainder of the affidavit is sufficient to es-tablish probable cause, the warrant issued uponsuch remaining information in the affidavit will beproper and the results of the search pursuant to thewarrant are constitutionally obtained. United Statesv. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d530 (1984); United States v. Thomas, 757 F.2d1359 (2d Cir.1985), cert. denied, Fisher v. UnitedStates, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54,reversed in part on other grounds 6 F.Supp.2d 254*792 S.D.N.Y. 1998); U.S. v. Tarazon-Silva, 960F.Supp. 1152 (W.D.Tex.1997), aff'd 166 F.3d 341(5th Cir.1998). See, similarly, State v. Morrison,243 Neb. 469, 500 N.W.2d 547 (1993), disap-proved on other grounds, State v. Johnson, 256Neb. 133, 589 N.W.2d 108 (1999) (noting that inac-curacy of description of quantity of contraband con-tained in package in affidavit did not render searchwarrant invalid).

The affidavit submitted by police in the instant caseto obtain a warrant to search Ortiz' apartment con-sisted of two principal components: the results ofthe canine sniff by Pogo, the trained police dog, inthe hallway outside Ortiz' apartment door and a de-scription of the call police received from C/C,coupled with further facts supplied by the police.We address each component below.

2. EXPECTATION OF PRIVACY ATTHRESHOLD OF DWELLING AND REQUIRE-MENT OF REASONABLE SUSPICION TO DE-PLOY CANINE TO SNIFF FOR ILLEGALDRUGS AT THRESHOLD OF DWELLING

It has been observed that the right of privacy asso-ciated with the home under the Fourth Amendmentis “one of the unique values of our civilization.”McDonald v. United States, 335 U.S. 451, 453, 69S.Ct. 191, 93 L.Ed. 153 (1948). The U.S. SupremeCourt recently noted:



In 1604, an English court made the now-famous ob-servation that ‘the house of every one is to him ashis castle and fortress, as well for his defenceagainst injury and violence, as for his repose.’Semayne's Case, 77 Eng. Rep. 194, 5 Co. Rep.91a, 91b, 195 (K.B.).

**815 Wilson v. Layne, 526 U.S. 603, 119 S.Ct.1692, 1697, 143 L.Ed.2d 818 (1999). The Courtcontinued: “The Fourth Amendment embodies thiscenturies-old principle of respect for the privacy ofthe home.” Id. The right to be free from unreason-able searches and seizures of the home is substan-tial, and it has been said to be the “ ‘chief evilagainst which the wording of the Fourth Amend-ment is directed.’ ” Welsh v. Wisconsin, 466 U.S.740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)(quoting United States v. United States DistrictCourt, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752(1972)).

[15][16] *793 In Nebraska, freedom from unreas-onable searches and seizures is guaranteed by U.S.Const. amend. IV and Neb. Const. art. I, § 7. Statev. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).The Fourth Amendment and Neb. Const. art. I, § 7,prohibit only unreasonable searches and seizures.These constitutional provisions do not protect cit-izens from all governmental intrusion, but onlyfrom unreasonable intrusions. State v. Ranson, 245Neb. 71, 511 N.W.2d 97 (1994).

The leading case regarding canine sniffs is UnitedStates v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77L.Ed.2d 110 (1983), in which it was concluded thatthe evidence of cocaine involved therein should besuppressed. In Place, the U.S. Supreme Court con-sidered the federal Fourth Amendment implicationsof the use of a drug detection dog to sniff luggagein an airport. After Place arrived at a New York air-port, he refused to voluntarily allow police tosearch his two suitcases. The officers allowed Placeto leave, but took his luggage to a separate locationfor a drug detection dog to sniff. The dog alerted

aggressively to one of Place's suitcases. At thispoint, approximately 90 minutes had elapsed fromthe officers' initial contact with Place. It was a Fri-day afternoon, and rather than immediately seekinga search warrant, the officers held Place's suitcasesover the weekend and applied for a search warrantthe following Monday morning. When police ex-ecuted the warrant and searched Place's suitcases,they found 1,125 grams of cocaine.

The Court in Place stated that a person possesses aprivacy interest in the contents of personal luggagethat is protected by the Fourth Amendment. TheCourt in Place observed that a canine sniff is suigeneris in that the canine alert is limited to the ex-istence of contraband and that the sniff is not highlyintrusive. The Place Court determined that the can-ine sniff of the luggage did not, by itself, violate theFourth Amendment. Id. The Place Court concluded,however, that because the police detained the lug-gage for a lengthy period and failed to diligentlypursue the investigation, the cocaine discovered inPlace's luggage pursuant to the search warrantshould have been suppressed.

In analyzing the facts of the case, the Place Courtobserved that a seizure of Place's luggage might bejustified within the exception to the Fourth Amend-ment in *794Terry v. Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968), where police possessa reasonable suspicion based upon specific and ar-ticulable facts that illegal narcotics are present andthe investigative detention is properly limited inscope. The Place Court stated that the canine sniffwas not a search under the Fourth Amendment, andwe have similarly concluded in State v. Morrison,243 Neb. 469, 500 N.W.2d 547 (1993), that a can-ine sniff of a package sent by express mail was nota search but was, nevertheless, proper because itwas preceded by facts amounting to reasonable sus-picion.

[17][18] Reasonable suspicion, commonly requiredto support a seizure or detention, Alabama v. White,



496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301(1990), is a quantum of facts less than probablecause, commonly required to support a search,United States v. Sokolow, 490 U.S. 1, 109 S.Ct.1581, 104 L.Ed.2d 1 (1989). See, also, State v.Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).Where the police have reasonable suspicion, theymay pursue **816 their investigation either to con-firm their suspicion or to dispel the suspicion thatcrime is afoot. Terry v. Ohio, supra.

Following United States v. Place, supra, in caninesniff cases in a variety of settings such as caninesniffs of luggage, packages, and public warehouses,the majority of courts have approved of the admis-sion of evidence gained by the use of a canine sniffif the canine sniff evidence was obtained based on areasonable, articulable suspicion. See State v. Waz,240 Conn. 365, 692 A.2d 1217 (1997) (cases col-lected). For example, in the context of a caninesniff of the corridor of a storage locker facility, thePennsylvania Supreme Court, referring to the can-ine sniff as a “search” under Pennsylvania's consti-tution, stated:

We believe that there is a Fourth Amendmentmiddle ground applicable to the investigationsconducted by police handlers of narcotics detec-tion dogs. On the one hand, much of the law en-forcement utility of such dogs would be lost iffull blown warrant procedures were required be-fore a canine sniff could be used; but on the oth-er, it is our view that a free society will not re-main free if police may use this, or any othercrime detection device, at random and withoutreason. Accordingly, we hold that a *795 narcot-ics detection dog may be deployed to test for thepresence of narcotics ... where:

(1) the police are able to articulate reasonablegrounds for believing that drugs may be presentin the place they seek to test; and

(2) the police are lawfully present in the place

where the canine sniff is conducted.

Our holding is based in part, on considerations notdissimilar to those stated in United States v.Place: a canine sniff-search is inherently less in-trusive upon an individual's privacy than othersearches such as wiretapping or rummagingthrough one's luggage; it is unlikely to intrude ex-cept marginally upon innocent persons; and anindividual's interest in being free from police har-assment, annoyance, inconvenience and humili-ation is reasonably certain of protection if the po-lice must have a reason before they may ... utilizea narcotics detection dog.

Com. v. Johnston, 515 Pa. 454, 465-66, 530 A.2d74, 79 (1987).

With respect to canine sniffs in hallways adjoiningresidential quarters, the type of sniff which is thesubject of the instant case, numerous courts haveheld that a canine sniff intrudes into an area wherean individual has a reasonable expectation of pri-vacy and that a canine sniff in a residential hallwaymust be supported by at least a reasonable suspi-cion based on articulable facts. Thus, for example,in People v. Dunn, 77 N.Y.2d 19, 26, 564 N.E.2d1054, 1058, 563 N.Y.S.2d 388, 392 (1990), cert.denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d1000 (1991), New York's highest court, in a caseinvolving a warrantless canine sniff in an apartmenthallway, concluded a canine sniff was a search un-der the state's constitution and stated as follows:“Given the uniquely discriminate and nonintrusivenature of such an investigative device, as well as itssignificant utility to law enforcement authorities,we conclude that it may be used without a warrantor probable cause, provided that the police have areasonable suspicion that a residence contains illicitcontraband.” The Dunn court added: “To hold oth-erwise, we believe would raise the specter of thepolice roaming indiscriminately through the cor-ridors of public housing projects with trained dogsin search of drugs.... Such an Orwellian notion



would be *796 repugnant under our State Constitu-tion....” Id. at 25, 564 N.E.2d at 1058, 563N.Y.S.2d at 392.

The above-quoted material from People v. Dunn,supra, recognized that “we cannot forgive the re-quirements of the Fourth Amendment in the nameof law enforcement [and] it is not asking too muchthat officers be required to comply with the basiccommand of the Fourth Amendment **817 beforethe innermost secrets of one's home ... are invaded.”Berger v. New York, 388 U.S. 41, 62-63, 87 S.Ct.1873, 18 L.Ed.2d 1040 (1967).

For the sake of completeness, we note that somecourts have held that there is no legitimate privacyexpectation in a residential apartment hallway andthat thus, canine sniffs do not implicate the FourthAmendment. See, e.g., Brown v. U.S., 627 A.2d 499(D.C.1993); State v. Taylor, 763 S.W.2d 756(Tenn.Crim.App.1988). At the other end of thespectrum, some courts have stated that there is aheightened expectation of privacy in a residentialapartment hallway, United States v. Thomas, 757F.2d 1359 (2d Cir.1985), cert. denied, Fisher v.United States, 474 U.S. 819, 106 S.Ct. 66, 88L.Ed.2d 54, reversed in part on other grounds 6F.Supp.2d 254 (S.D.N.Y.1998), and thus a caninesniff may not proceed in the absence of probablecause. See, similarly, State v. Dearman, 92Wash.App. 630, 962 P.2d 850 (1998) (holding thatprobable cause is required prior to canine sniff out-side residential garage).

[19] We agree with the courts which conclude anindividual's Fourth Amendment privacy interestsmay extend in a limited manner beyond the fourwalls of the home, depending on the facts, includ-ing some expectation of privacy to be free from po-lice canine sniffs for illegal drugs in the hallwayoutside an apartment or at the threshold of a resid-ence, and that a canine sniff under these circum-stances must be based on no less than reasonable,articulable suspicion. As described more fully be-

low, under the facts of this case, we conclude that,given the legitimate expectation of some measureof privacy in the hallway, the canine sniff for illeg-al drugs which lacked reasonable suspicion violatedthe Fourth Amendment and Neb. Const. art. I, § 7.Our reasoning is similar to that in Katz v. UnitedStates, 389 *797 U.S. 347, 88 S.Ct. 507, 19L.Ed.2d 576 (1967), in which the U.S. SupremeCourt reasoned that given the legitimate expecta-tion of privacy in a telephone booth, the placementof a monitoring device on the outside thereof viol-ated the Fourth Amendment's proscription againstunreasonable searches and seizures. See, similarly,McDonald v. United States, 335 U.S. 451, 69 S.Ct.191, 93 L.Ed. 153 (1948) (reasoning that trespassby police officers into rooming house violated pri-vacy of home, requiring suppression of seized evid-ence).

3. APPLICATION OF LAW TO THIS CASE

(a) Existence of Expectation of Privacy in ThisCase

[20] In the instant case, we recognize that the can-ine sniff was not conducted inside the apartment;however, the information gained by the canine alertas to the existence of contraband inside the apart-ment emanated from inside the apartment and wasdetected outside at its threshold. In this regard, ithas been held that “[i]ndiscriminate monitoring ofproperty that has been withdrawn from public viewwould present far too serious a threat to privacy in-terests in the home to escape entirely some sort ofFourth Amendment oversight.” United States v. Ka-ro, 468 U.S. 705, 716, 104 S.Ct. 3296, 82 L.Ed.2d530 (1984). It has also been observed that the reachof the Fourth Amendment “cannot turn upon thepresence or absence of a physical intrusion into anygiven enclosure,” Katz v. United States, 389 U.S. at353, 88 S.Ct. 507; that the Fourth Amendment fore-closes a distinction between “ ‘worthy’ ” and “



‘unworthy’ ” objects which are the subject of in-vestigation, United States v. Ross, 456 U.S. 798,822, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); andthat “[t]hose suspected of drug offenses are no lessentitled to [Fourth Amendment] protection thanthose suspected of nondrug offenses,” United Statesv. Karo, 468 U.S. at 717, 104 S.Ct. 3296.

In connection with assessing the expectation of pri-vacy in Ortiz' hallway for Fourth Amendment andNebraska constitutional purposes, we note that the**818 “ ‘Fourth Amendment protects people, notplaces.’ ” (Emphasis in original.) State v. Havlat,222 Neb. 554, 558, 385 N.W.2d 436, 439 (1986),quoting Katz v. United States, supra. See, also,State v. Ramaekers, 257 Neb. 391, 597 N.W.2d 608(1999). As noted above in Katz, the electronic*798device affixed to the outside of a telephone boothwas determined to violate the Fourth Amendmentbecause the user of the telephone booth had a legit-imate expectation of privacy upon closing the doorto the telephone booth and placing a call. It hasbeen stated: “What a person knowingly exposes tothe public, even in his own home or office, is not asubject of Fourth Amendment protection.... Butwhat he seeks to preserve as private, even in anarea accessible to the public, may be constitution-ally protected.” Katz v. United States, 389 U.S at351-52, 88 S.Ct. 507. In Katz, Justice Stewart, writ-ing for the majority, cautioned that “the FourthAmendment cannot be translated into a generalconstitutional ‘right to privacy.’ ” 389 U.S. at 350,88 S.Ct. 507. Justice Harlan, concurring, said theextent of Fourth Amendment protection is determ-ined by reference to a place. Katz v. United States,389 U.S. at 361, 88 S.Ct. 507. The principles enun-ciated in Katz have long been relied upon in ourjurisprudence. State v. Havlat, supra. Because thesitus of the canine sniff in this case is the thresholdto Ortiz' apartment, we must make reference to theadjoining dwelling in our analysis of privacy in thisappeal.

[21] In cases such as the one before us, to determ-

ine whether an individual has an interest protectedby the Fourth Amendment and Neb. Const. art. I, §7, one must determine whether an individual has alegitimate or justifiable expectation of privacy inthe place subjected to canine scrutiny. Ordinarily,two inquiries are required. First, the individualmust have “ ‘exhibited an actual (subjective) ex-pectation of privacy,’ ” and second, “the expecta-tion is one that ‘society is prepared to recognize as“reasonable.” ’ ” Hudson v. Palmer, 468 U.S. 517,525 n. 7, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).This two-part inquiry has been adopted and utilizedby this court. See, State v. Ramaekers, supra; Statev. Merrill, 252 Neb. 510, 563 N.W.2d 340 (1997).The “ultimate question” is whether one's claim ofprivacy from governmental intrusion is reasonablein light of all the surrounding circumstances. Hud-son v. Palmer, supra. See, also, Minnesota v.Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85(1990) (apparently combining Hudson v. Palmertwo-part inquiry into one).

[22] Reasonable expectations of privacy vary ac-cording to the context of the case, *799O'Connor v.Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L.Ed.2d714 (1987). It has been observed: “Legitimation ofexpectation of privacy by law must have a sourceoutside of the Fourth Amendment, either by refer-ence to concepts of real or personal property law orto understandings that are recognized and permittedby society.” Rakas v. Illinois, 439 U.S. 128, 144 n.12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). There canbe little doubt, and the cases confirm, see, e.g.,Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143L.Ed.2d 818 (1999), that a home, including anapartment home, is considered by both occupantsand society to be entitled to greater privacy thanobjects of a less intimate nature, such as a storagelocker, Com. v. Johnston, 515 Pa. 454, 530 A.2d 74(1987); or of a more transient nature, such as apackage entrusted to the postal service, State v.Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993),disapproved on other grounds, State v. Johnson,



256 Neb. 133, 589 N.W.2d 108 (1999); or avehicle, State v. Pellicci, 133 N.H. 523, 580 A.2d710 (1990). See, also, State v. Konfrst, 251 Neb.214, 556 N.W.2d 250 (1996). In this regard, wenote that case law recognizes that there is a greaterdegree of privacy expected in the home than in ahotel or a motel. See Commonwealth v. Panetti, 406Mass. 230, 547 N.E.2d 46 (1989).

**819 [23] In assessing the privacy interest in theapartment hallway, we must evaluate whether, un-der the circumstances, the area of the hallwayshould be placed under the home's “ ‘umbrella’ ofFourth Amendment protection.” United States v.Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94L.Ed.2d 326 (1987) (defining, inter alia, curtilage).In this regard, it should be noted that given the un-disputed fact that the officers went to the hallwayoutside Ortiz' apartment on one occasion solely todeploy Pogo, in analyzing this case, we are not ob-liged to speculate as to whether the police mighthave been lawfully present in the apartment hall-way unaccompanied by the canine whose purposein being there was to detect illegal drugs.

[24] We recognize, as noted earlier in this opinion,that the authorities are split as to whether an occu-pant has a reasonable expectation of privacy in thehallway outside his or her apartment. We agreewith the courts which hold that there is some meas-ure of privacy at the threshold of an apartmentdwelling. For example, in *800People v. Killebrew,76 Mich.App. 215, 218, 256 N.W.2d 581, 583(1977), it was stated that “[g]enerally, a hallwayshared by tenants in a private multi-unit dwelling isnot a public place. It is a private space intended forthe use of the occupants and their guests, and anarea in which the occupants have a reasonable ex-pectation of privacy.” For the sake of completeness,we note that under the case law, the degree of pri-vacy society is willing to accord an apartment hall-way may depend on the facts, such as whether thereis an outer door locked to the street which limits ac-cess, e.g., People v. Trull, 64 Ill.App.3d 385, 20

Ill.Dec. 960, 380 N.E.2d 1169 (1978); the numberof residents using the hallway, e.g., United States v.Fluker, 543 F.2d 709 (9th Cir.1976); the number ofunits in the apartment complex, e.g., People v. Kil-lebrew, supra; and the presence or absence of notrespassing signage, e.g., State v. Taylor, 763S.W.2d 756 (Tenn.Crim.App.1988).

[25] Where the police unaccompanied by a canineare merely pursuing an investigation, it has beenheld that they may go to the stairway leading to anapartment, State v. Breuer, 577 N.W.2d 41 (Iowa1998), or walk around to the rear of a defendant'shome, United States v. Anderson, 552 F.2d 1296(8th Cir.1977), notwithstanding an occupant's ex-pectation of some measure of privacy in these loca-tions and that that which an officer observes inplain view while lawfully pursuing an investigationis not protected by the Fourth Amendment. Wehave recently observed that “Objects, falling withinthe plain view of an officer, who has the right to bein the position to have such view, does not consti-tute a search.” State v. Ramaekers, 257 Neb. 391,397, 597 N.W.2d 608, 613 (1999). See, also, Statev. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992).To the foregoing we add: That which a law enforce-ment officer detects using his or her unaided senseswhile lawfully present does not violate FourthAmendment or Nebraska constitutional principles,because that which is voluntarily exposed to thegeneral public and observable from an unprotectedarea without using sense-enhancing devices is notpart of a person's private affairs. See State v. Dear-man, 92 Wash.App. 630, 962 P.2d 850 (1998)(holding, inter alia, that canine sniff of residentialgarage was search under Washington constitution).It has also been observed: “What can be heard bythe naked ear, when the ear is where it *801 has aright to be, is not protected by the Fourth Amend-ment.” United States v. Agapito, 620 F.2d 324, 331(2d Cir.1980), cert. denied 449 U.S. 834, 101 S.Ct.107, 66 L.Ed.2d 40.

[26] In contrast to the officers' observations ob-



tained by plain view, the use of a canine such as oc-curred in this case is “not a mere improvement of[the officers'] sense of smell, as ordinary eyeglassesimprove vision, but is a significant enhancementaccomplished by a different, and far superior, sens-ory instrument.” **820United States v. Thomas,757 F.2d 1359 at 1367 (2d Cir.1985), cert. denied,Fisher v. United States, 474 U.S. 819, 106 S.Ct. 66,88 L.Ed.2d 54, reversed in part on other grounds 6F.Supp.2d 254(S.D.N.Y.1998). Like the electronicsurveillance equipment in Katz v. United States,389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),the results of which surveillance were suppressed asobtained in violation of the Fourth Amendment, theinformation “originate[d] from inside a private areaand travel[ed] beyond its perimeters,” People v.Price, 54 N.Y.2d 557, 565, 431 N.E.2d 267, 271,446 N.Y.S.2d 906, 910 (1981) (Meyer, J., concur-ring) unexposed to all except those with supersens-itive detection devices. See 1 Wayne R. LaFave,Search and Seizure, a Treatise on the FourthAmendment § 2.2(f) (3d ed.1996). By using a can-ine to sniff for illegal drugs in a hallway outsideOrtiz' apartment, the police have engaged an invest-igative technique by which they are able to obtaininformation regarding the contents of a place thathas traditionally been accorded a heightened ex-pectation of privacy. See People v. Dunn, 77N.Y.2d 19, 564 N.E.2d 1054, 563 N.Y.S.2d 388(1990), cert. denied 501 U.S. 1219, 111 S.Ct. 2830,115 L.Ed.2d 1000 (1991). While such an investigat-ive technique may be minimally intrusive, it never-theless implicates the Fourth Amendment and Neb.Const. art. I, § 7, and requires independent reason-able suspicion. Id. The canine sniff for illegal drugsat the threshold of a dwelling is an investigativetool which may be used to build a case of probablecause for issuance of a search warrant if there isreasonable suspicion to take the canine to the loca-tion of the test.

*802 (b) Lack of Reasonable Suspicion to Deploythe Canine in This Case

[27] The canine sniff for illegal drugs in this casetranspired in a location in which Ortiz had a legit-imate expectation of some measure of privacy, andtherefore, the intrusion is subject to the FourthAmendment and Neb. Const. art. I, § 7, and wehave concluded that the officers needed at a minim-um reasonable suspicion before proceeding with thecanine sniff. The investigative tool of the caninesniff at the threshold of a dwelling may thus beused where it is preceded by information amountingto reasonable, articulable suspicion. As detailed be-low, we determine that the officers lacked reason-able suspicion to take Pogo into the hallway outsideOrtiz' apartment door in this case.

[28][29] With respect to the existence of reasonablesuspicion, we have explained that reasonable suspi-cion entails some minimal level of objective justi-fication which is more than an inchoate and unpar-ticularized suspicion or hunch, but less than thelevel of suspicion required for a finding of probablecause. State v. Johnson, 256 Neb. 133, 589 N.W.2d108 (1999). Reasonable suspicion, like probablecause, depends upon both the content of informa-tion possessed by police and its degree of reliabil-ity. Both factors are considered in the totality of thecircumstances that must be taken into account toevaluate whether reasonable suspicion exists. Statev. Thomas, 240 Neb. 545, 483 N.W.2d 527 (1992),relying on Alabama v. White, 496 U.S. 325, 110S.Ct. 2412, 110 L.Ed.2d 301 (1990). We have saidwith respect to certain investigations that for of-ficers to have reasonable suspicion, they must havea reasonable belief that a crime has been or is aboutto be committed. State v. Bowers, 250 Neb. 151,548 N.W.2d 725 (1996); State v. Hicks, 241 Neb.357, 488 N.W.2d 359 (1992), cert. denied 507 U.S.1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993);State v. Thomas, supra.

A review of decisions of other courts regardingcanine sniffs, albeit in nonresidential settings, ishelpful in illustrating the types of facts whichamount to reasonable suspicion sufficient to justify



a canine sniff. Common threads in such cases asU.S. v. Mondello, 927 F.2d 1463 (9th Cir.1991),McGahan v. State, 807 P.2d 506 (AlaskaApp.1991), and Com. v. Johnston, 515 Pa. 454, 530A.2d 74 (1987), and other **821 cases in whichreasonable *803 suspicion has been found to justifya canine sniff for contraband, are a police officer'spersonally observing suspicious conduct or, in thealternative, investigating incriminating as opposedto innocuous facts or receiving incriminating in-formation from an established reliable informant.

[30] We examine in the instant case whether the po-lice had at least reasonable, articulable suspicion tobring Pogo into the hallway outside of Ortiz' apart-ment to conduct the canine sniff, which sniff is sub-ject to the Fourth Amendment and the NebraskaConstitution. If the police were in possession of in-formation amounting to reasonable suspicion whenthe canine sniff was conducted, the results of thesniff can be considered in evaluating the existenceof probable cause for the issuance of the searchwarrant. State v. Morrison, 243 Neb. 469, 500N.W.2d 547 (1993), disapproved on other grounds,State v. Johnson, supra; State v. Staten, 238 Neb.13, 469 N.W.2d 112 (1991); State v. Chronister, 3Neb.App. 281, 526 N.W.2d 98 (1995). If, however,the police did not have at least reasonable, articul-able suspicion to proceed to the hallway outsideOrtiz' apartment for the purpose of running Pogo inthe hallway outside Ortiz' door, evidence of Pogo'sreaction cannot be considered in assessing the ex-istence of probable cause to issue the search war-rant, and if the remainder of the information in theaffidavit does not amount to probable cause, thewarrant is defective and the fruits of the searchmust be suppressed. See, e.g., State v. Fitch, 255Neb. 108, 582 N.W.2d 342 (1998) (holding, in reli-ance on Wong Sun v. United States, 371 U.S. 471,83 S.Ct. 407, 9 L.Ed.2d 441 (1963), that evidencedirectly produced by unconstitutional search, aswell as evidence indirectly derived from unconsti-tutional search, must be suppressed).

The record indicates that police officers broughtPogo to Ortiz' apartment building for the purpose ofperforming a canine sniff on the same evening inwhich they had earlier received the anonymous callfrom C/C alleging that Ortiz had been actively dis-tributing cocaine from his apartment “within thepast year.” This information from C/C was an un-corroborated allegation from an anonymous sourcewhose reliability was unknown to police. The callerreported activity “within the past year” but statedno exigent circumstance that demanded immediateaction *804 from police. The officers did not con-duct a meaningful investigation. The police verifiedinnocuous information which had been supplied byC/C and did a criminal records check which re-vealed a 6-year-old conviction and charges droppedmore than 3 years prior to enlisting Pogo and hishandler to perform a canine sniff in the hallwayoutside Ortiz' apartment. Prior to receiving C/C'scall, police had no suspicion that Ortiz waspresently engaged in criminal conduct. The officersmade no observations of Ortiz or of the proposedlocation of the canine sniff prior to deploying Pogo.The information provided by the anonymous C/Ccoupled with the verification of inconclusive factsdid not amount to a quantum of facts or to the de-gree of reliability which amounted to reasonablesuspicion. See State v. Thomas, 240 Neb. 545, 483N.W.2d 527 (1992). Based on the foregoing, we de-termine that the officers did not have reasonablesuspicion to go to the hallway outside of Ortiz'apartment for the purpose of running Pogo outsideof Ortiz' apartment to detect illegal drugs.

The information resulting from the alert was notobtained in a manner consistent with the FourthAmendment and Neb. Const. art. I, § 7. The inform-ation gained by virtue of Pogo's sniff outside Ortiz'apartment was not constitutionally obtained, andsuch information cannot be considered as a basisfor obtaining a search warrant. We must, therefore,excise the information generated by Pogo's alert inthe hallway from the affidavit and examine the re-



mainder of the affidavit for the existence of prob-able cause. The remainder of the affidavit consistsof the **822 information supplied by C/C, coupledwith some additional facts noted above.

(c) Evaluation of Information in Affidavit OtherThan Canine Alert for Probable Cause: Reliabilityand Sufficiency of Information Supplied by C/C

and Other Facts

[31] To have the evidence seized pursuant to thesearch warrant suppressed, Ortiz must show thatthere was not a sufficient residue of information inthe affidavit amounting to probable cause to sup-port the warrant without consideration of the fact ofthe improperly obtained canine alert. In addition tothe positive *805 canine alert, the affidavit beforethe issuing judge consisted of the information sup-plied by C/C and the address and records check ofOrtiz.

[32][33][34] When a search warrant is obtained onthe strength of information received from an in-formant, the affidavit in support of the issuance ofthe warrant must set forth facts demonstrating thebasis of the informant's knowledge of criminalactivity. The affidavit must also either establish theinformant's credibility or set forth a police officer'sindependent investigation of the information sup-plied by the informant. State v. Lytle, 255 Neb. 738,587 N.W.2d 665 (1998), disapproved in part onother grounds, State v. Johnson, 256 Neb. 133, 589N.W.2d 108 (1999); State v. Flores, 245 Neb. 179,512 N.W.2d 128 (1994), disapproved in part onother grounds, State v. Johnson, supra; State v. Ut-terback, 240 Neb. 981, 485 N.W.2d 760 (1992),disapproved in part on other grounds, State v.Johnson, supra. This is so because without inform-ation regarding the informant's credibility, “ ‘[t]hemagistrate would have no way of ascertainingwhether this tip was rumor, speculation, vendetta,reprisal, or gossip.’ ” State v. Lytle, 255 Neb. at749, 587 N.W.2d at 672, quoting with approval

State v. Valley, 252 Mont. 489, 830 P.2d 1255(1992). If an affidavit does not establish that an in-formant is reliable, a search warrant issued solelyupon the information supplied by the informant isinvalid. State v. Lytle, supra.

As set forth above in the passage excerpted fromthe police affidavit submitted in order to obtain thewarrant, C/C's name was not made known to themagistrate nor did the affidavit indicate that C/Cwas known to the police officers or had providedreliable information to them in the past. On appeal,the State characterizes C/C as a citizen informantwhose tip was presumptively reliable. This charac-terization is incorrect because the affidavit submit-ted in support of the application for a search war-rant does not identify C/C as a citizen informant,which is a special status which must be affirmat-ively alleged. See, State v. Lytle, supra; State v. Ut-terback, supra. Although the affidavit stated that C/C did not request payment for the information giv-en to police, this fact, without more, does not estab-lish that the tipster is a reliable citizen informant.See State v. Utterback, supra.

*806 The affidavit detailed no statement by C/Cagainst his or her penal interest which might havetended to increase the likelihood that the informa-tion supplied by C/C was true. See id. The affidavitdid not indicate how or why C/C knew that Ortizsold cocaine from his apartment. The affidavit didnot state whether and when C/C had been inside theapartment, purchased cocaine from Ortiz, or beenpresent during a drug sale by Ortiz. See, State v.Lytle, supra; State v. Utterback, supra.

The affidavit did recite that police had confirmedthat Ortiz lived at the address provided by C/C andthat Ortiz' appearance matched the general descrip-tion supplied by C/C. Ortiz' address and physicaldescription are neutral facts which do not, withoutmore, imply criminality. See, State v. Flores,supra; State v. Utterback, supra. Corroboration ofthis information did not generate enough informa-



tion to establish probable cause that Ortiz had com-mitted, or was about to commit, a crime. Id.

**823 The affidavit included information from po-lice records that Ortiz had a prior conviction in1991 and that Ortiz had been arrested in 1994, butthat these charges were dropped. The informationregarding Ortiz' drug-related criminal history maybe considered relevant information which could beproperly included by police in the affidavit todemonstrate probable cause. State v. Hodge andCarpenter, 225 Neb. 94, 402 N.W.2d 867 (1987),disapproved in part on other grounds, State v.Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).However, without proof of present criminal activ-ity, the information about Ortiz' past criminal activ-ity lacks temporal significance and did not by itselfcreate probable cause to believe that Ortiz was cur-rently engaged in the same genre of criminal con-duct or any criminal conduct which had led to hisprior conviction. See, State v. Johnson, supra; Statev. Reeder, 249 Neb. 207, 543 N.W.2d 429 (1996),cert. denied 519 U.S. 1006, 117 S.Ct. 506, 136L.Ed.2d 397.

In this case, the permissible information containedin the affidavit submitted in support of issuing asearch warrant, consisting of the information sup-plied by C/C, Ortiz' history, and certain innocentdetails of Ortiz' life, failed to demonstrate a totalityof circumstances that established probable cause.We cannot say that the “totality of the circum-stances,” see *807Illinois v. Gates, 462 U.S. 213,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), withoutconsideration of the canine alert, provided a suffi-cient basis for the issuance of the search warrant.Because it was issued without probable cause, thesearch warrant was constitutionally defective. TheState has not asked that we consider the good faithexception under United States v. Leon, 468 U.S.897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and,accordingly, we do not engage in such an analysis.

(d) Outcome of This Case

The evidence seized pursuant to a defective warrantmust be suppressed. State v. Fitch, 255 Neb. 108,582 N.W.2d 342 (1998). In sum, the trial court'srulings denying the motion to suppress and admit-ting the challenged evidence were erroneous, andthe judgment is reversed, and the cause is remandedfor a new trial.

VI. CONCLUSION

[35][36][37] The Fourth Amendment embodies thecenturies-old principle of respect for the privacy ofthe home. Under the federal and Nebraska Constitu-tions, a canine sniff for illegal drugs conducted atthe threshold of a dwelling detects information re-garding the contents inside the home, and an indi-vidual has a legitimate expectation of privacy in-side the home even as to these unworthy contents.Under the Fourth Amendment and Neb. Const. art.I, § 7, an occupant has a legitimate expectation ofsome measure of privacy in the hallway immedi-ately outside his or her apartment or at thethreshold of his or her home. Given such constitu-tional protection, before a drug-detecting caninecan be deployed to test the threshold of a home, theofficers must possess at a minimum reasonable, ar-ticulable suspicion that the location to be testedcontains illegal drugs.

We have concluded in the instant case that due tothe absence of reasonable, articulable suspicion, itwas improper for the police to go to the thresholdof Ortiz' residence for the sole purpose of deployinga canine to sniff for the existence of illegal drugsinside the home. In this case, an anonymous tip,inter alia, did not provide reasonable, articulablesuspicion that would constitutionally justify a can-ine sniff investigation immediately outside an indi-vidual's dwelling. The result of the canine alert*808 must be disregarded in evaluating the suffi-ciency of the affidavit in support of the search war-



rant, and the residue of the affidavit did not amountto probable cause to issue a search warrant.

There was no probable cause to justify issuance ofthe warrant to search Ortiz' apartment. The searchwarrant was constitutionally defective. Because thefruits **824 of the unconstitutional search shouldhave been excluded, the trial court erred in overrul-ing Ortiz' motion to suppress the evidence seizedpursuant to the search and in admitting that evid-ence at trial. The trial court's ruling denying themotion to suppress was error and the ruling admit-ting the challenged evidence was error, and thus,the judgment of the district court is reversed, andthe cause is remanded for a new trial consistentwith this opinion.

REVERSED AND REMANDED FOR A NEWTRIAL.CONNOLLY, J., concurring.I concur in the result but disagree with the conclu-sion of the majority that a canine sniff performedoutside an apartment for the purpose of detectingdrugs located inside that apartment may be per-formed without a warrant based on reasonable sus-picion. I would hold that the use of a canine at thethreshold of a dwelling to detect an item found in-side that dwelling constitutes a search, thus trigger-ing the protection of the Fourth Amendment. Dueto the heightened expectation of privacy one has inhis or her dwelling, I would apply the standardprinciple that absent only a few narrowly prescribedexigent circumstances, the search of a dwellingmust be made pursuant to a warrant based on prob-able cause.

The issues in the instant case are (1) whether a can-ine sniff of the exterior of a dwelling that is utilizedto detect the presence of contraband inside thatdwelling constitutes a search or seizure and if so,(2) whether the search was reasonable, i.e, whetherthe limited intrusive nature of the search and thefact that it can only detect contraband act to lowerthe standard from probable cause to reasonable sus-

picion.

WHETHER THE FOURTH AMENDMENT IS IM-PLICATED

The majority fails to conclusively state how theprotections of the Fourth Amendment apply to Ort-iz. As the majority correctly *809 states, the FourthAmendment and Neb. Const. art. 1, § 7, prohibitonly unreasonable searches and seizures. Obvi-ously, if no search or seizure occurred, Ortiz couldnot claim the protections of the Fourth Amendment,and the inquiry would end. See, e.g., U.S. v. Colyer,878 F.2d 469 (D.C.Cir.1989) (canine sniff was notsearch and therefore neither reasonable suspicionnor probable cause was required). Because it isclear that a seizure did not take place in the instantcase where there was nothing tangible taken or de-tained by the police, I focus my inquiry only onwhether a search occurred. United States v. Karo,468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530(1984). See, generally, State v. Cox, 247 Neb. 729,529 N.W.2d 795 (1995) (discussing relation ofproperty interests to determination of whetherseizure has occurred).

As the majority stated, this court has traditionallyrelied on the principles enunciated in Katz v. UnitedStates, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967), when considering whether Fourth Amend-ment protections are involved. See, also, State v.Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986)(discussing Katz ). A person's right to invoke theprotection of the Fourth Amendment as to unreas-onable searches and seizures depends not upon aproperty right in the invaded place, but upon wheth-er the person who claims protection of the FourthAmendment has a legitimate expectation of privacyin the invaded place. Katz, supra; State v. Harms,233 Neb. 882, 449 N.W.2d 1 (1989). Although theFourth Amendment protects people, not places, onecannot understand an individual's privacy expecta-tions without reference to a place. Katz, supra



(Harlan J., concurring). Thus, we have held that “‘[o]wnership and possessory rights in “places” arestill important in determining whether or not a par-ticular person has a legitimate expectation of pri-vacy in a particular place.’ ” Harms, 233 Neb. at888, 449 N.W.2d at 5.

**825 I concede there is a split of authority regard-ing whether a canine sniff constitutes a search. Re-lying on the dicta in United States v. Place, 462U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983),which stated that a canine sniff of luggage that wasdetained in a public airport did not constitute asearch within the meaning of the Fourth Amend-ment, the federal courts overwhelmingly*810 holdthat canine sniffs are not searches. See State v. Waz,240 Conn. 365, 692 A.2d 1217 (1997) (citing feder-al cases). We have also previously relied on Placeto determine that a canine sniff of an express mailpackage did not constitute a search. State v. Morris-on, 243 Neb. 469, 500 N.W.2d 547 (1993), disap-proved on other grounds, State v. Johnson, 256Neb. 133, 589 N.W.2d 108 (1999). In addition toPlace, United States v. Jacobsen, 466 U.S. 109,104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), made it clearthat some types of police techniques such as fieldtests and dog sniffs are not protected as searchesunder the Fourth Amendment because of the lim-ited nature of the intrusion. Jacobsen further indic-ated that if a police technique reveals only the pres-ence or absence of contraband, the Court does notview the technique used to be a search.

State courts are also divided on the issue. Somecourts conclude, usually on the basis of their stateconstitution, that canine sniffs constitute searches.However, other courts apply the reasoning of Placeand Jacobsen to conclude that canine sniffs do notconstitute a search. The reasoning of Place and Jac-obsen is not without criticism, some of which I findrelevant to the instant case.

First, as Justice Brennan noted in his dissent in Jac-obsen, when the focus is on the nature of the item

sought and revealed through the use of a dog sniff,the resulting theory is that individuals have no reas-onable expectation of privacy due to the fact thatthey are carrying contraband. As Justice Brennanstated, this is contrary to the “fundamental principlethat ‘[a] search prosecuted in violation of the Con-stitution is not made lawful by what it brings tolight.’ ” Jacobsen, 466 U.S. at 140, 104 S.Ct. 1652,quoting Byars v. United States, 273 U.S. 28, 47S.Ct. 248, 71 L.Ed. 520 (1927). Such a focus alsoignores the principles articulated in Katz v. UnitedStates, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967), in which the Court held that Katz had a le-gitimate expectation of privacy in his telephoneconversation regardless of the illegality of the con-tent of that conversation. “What a person know-ingly exposes to the public, even in his own homeor office, is not a subject of Fourth Amendmentprotection.... But what he seeks to preserve asprivate, even in an area accessible *811 to the pub-lic, may be constitutionally protected.” Katz, 389U.S. at 351-52, 88 S.Ct. 507.

I agree that a dog sniff is undisputably less intrus-ive than a “full-blown” search due to its ability toidentify only the presence or absence of contra-band. However, as illustrated by Justice Brennan'sdissent in Jacobsen and this court's reliance on theprinciples enunciated in Katz, this distinction aloneshould not be the deciding factor when consideringwhether the sniff constitutes a search. Were this tobecome the deciding factor, the court would act toforeclose any consideration of the circumstancesunder which the sniff was conducted and “may verywell [pave] the way for technology to override thelimits of law in the area of criminal investigation.”Jacobsen, 466 U.S. at 137-38, 104 S.Ct. 1652(Brennan, J., dissenting). See, also, Hope WalkerHall, Sniffing Out the Fourth Amendment: UnitedStates v. Place-Dog Sniffs-Ten Years Later, 46Maine L.Rev. 151 (1994). To the extent that a fewcases appear to consider the ability of canine sniffsto detect only contraband as the deciding factor



without considering other circumstances, I find thereasoning of those cases to be unpersuasive. See,U.S. v. Reed, 141 F.3d 644 (6th Cir.1998); U.S. v.Lingenfelter, 997 F.2d 632 (9th Cir.1993); U.S. v.Colyer, 878 F.2d 469 (D.C.Cir.1989).

**826 More importantly, the U.S. Supreme Courtleft unclear whether canine sniffs do not constitutesearches only when conducted in areas such as air-ports, where the expectation of privacy on the partof passengers is already lowered. See Hall, supra.This is an important distinction because as one au-thor has noted, the large majority of federal courtdecisions address dog sniffs in the context of lug-gage or other public areas outside of the defendant'spersonal residence. Such cases require only a plainapplication of the dicta in United States v. Place,462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110(1983). However, when a sniff occurs in the contextof an area where there is a heightened expectationof privacy, the Second Circuit, along with manystate courts, concludes that such sniffs do constitutesearches. See Hall, supra (listing cases). I find thereasoning of these cases to be convincing.

In United States v. Thomas, 757 F.2d 1359 (2dCir.1985), the Second Circuit held that a caninesniff conducted at the threshold*812 of an apart-ment constituted a search of that apartment underthe U.S. Constitution, requiring a warrant basedupon probable cause. Specifically, the court held:

Here the defendant had a legitimate expectation thatthe contents of his closed apartment would re-main private, that they could not be “sensed”from outside his door. Use of the trained dog im-permissibly intruded on that legitimate expecta-tion. The Supreme Court in Place found only“that the particular course of investigation thatthe agents intended to pursue here-exposure ofrespondent's luggage, which was located in apublic place, to a trained canine-did not consti-tute a ‘search’ within the meaning of the FourthAmendment.” ... Because of [the defendant's]

heightened expectation of privacy inside hisdwelling, the canine sniff at his door constituteda search.

Thomas, 757 F.2d at 1367. Thus, the Thomas courtstated:It is one thing to say that a sniff in an airport isnot a search, but quite another to say that a sniffcan never be a search. The question always to beasked is whether the use of a trained dog intrudeson a legitimate expectation of privacy.

Id. at 1366.

Other federal circuits have reconciled the holdingof Thomas by noting that the issues in the casesthey had under consideration did not involve anarea such as a dwelling where the expectation ofprivacy is heightened. I believe this implicitly ac-knowledges that there may be some instances inwhich a canine sniff might be considered a search.See, e.g., U.S. v. Stone, 866 F.2d 359 (10thCir.1989) (distinguishing United States v. Thomas,757 F.2d 1359 (2d Cir.1985), on basis ofheightened expectation of privacy); U.S. v. White-head, 849 F.2d 849, 857 (4th Cir.1988)(distinguishing sleeping car on train from dwellingin United States v. Thomas, supra, and stating“Place obviously did not sanction the indiscrimin-ate, blanket use of trained dogs in all contexts”),abrogated in part on other grounds, Gozlon-Peretzv. United States, 498 U.S. 395, 111 S.Ct. 840, 112L.Ed.2d 919 (1991); U.S. v. Thomas, 787 F.Supp.663 (E.D.Tex.1992) (placing dog inside trunk andpassenger compartment of vehicle constituted inva-sion into area where there was expectation*813 ofprivacy). See, also, Hope Walker Hall, Sniffing Outthe Fourth Amendment: United States v. Place-DogSniffs-Ten Years Later, 46 Maine L.Rev. 151(1994) (discussing cases). This distinction has beennoted by state courts as well. See, State v. Young,123 Wash.2d 173, 867 P.2d 593 (1994) (noting thatprivate residences were not involved in prior caseswhere Washington appellate courts approved war-



rantless dog sniffs); State v. Dearman, 92Wash.App. 630, 962 P.2d 850 (1998) (dog sniff ofgarage of private residence required warrant basedon probable cause).

Although a canine sniff for narcotics may be lessintrusive in relation to other **827 investigatorymethods and will disclose only the presence or ab-sence of narcotics, it remains a way of detecting thecontents of a private, enclosed space. Through theuse of a dog, officers are able to obtain informationabout what is contained within a dwelling that theycould not obtain utilizing their own senses.“Consequently, the officer's use of a dog is not amere improvement of their sense of smell, as ordin-ary eyeglasses improve vision, but is a significantenhancement accomplished by a different, and farsuperior, sensory instrument.” Thomas, 757 F.2d at1367. See, also, Dearman, 92 Wash.App. at 636,962 P.2d at 853 (“using a narcotics dog goes bey-ond merely enhancing natural human senses and, ineffect, allows officers to ‘ “see through the walls”of the home’ ”); State v. Pellicci, 133 N.H. 523,580 A.2d 710 (1990) (canine sniff of vehicle issearch because dog discerned something not other-wise apparent to officers through their own senses).

The majority in the instant case never addresseswhether they consider the canine sniff conducted atthe threshold of Ortiz' apartment to be a search.Rather, the majority states that Ortiz had some ex-pectation of privacy in the hallway and applies areasonable suspicion standard to determine whetherthe sniff was reasonable. I disagree with this reas-oning. As illustrated by United States v. Thomas,757 F.2d 1359 (2d Cir.1985), Dearman, supra, andothers, the dog in the instant case was not used tolocate contraband in the hallway. Rather, it wasused to determine whether there was contraband in-side Ortiz' apartment. As the second part of thisconcurrence illustrates, the location of the dog inattempting to determine the contents of the *814apartment may be a consideration when determin-ing whether the search was reasonable, but it does

not change the fact that the officers used the canineto locate something inside a private dwelling. Thus,it is Ortiz' expectation of privacy in his apartmentthat is at issue. Under the facts of the instant case, Iagree with the reasoning of Thomas and other au-thorities that a canine sniff at the threshold of anapartment constitutes a search of that apartment,thus involving the Fourth Amendment. Accord-ingly, I would hold that the canine sniff in the in-stant case constituted a search.

WHETHER CANINE SNIFF OF DWELLING RE-QUIRES WARRANT

The canine sniff in the instant case constituted asearch, thus the next issue to be determined iswhether that search was reasonable. I agree with themajority to the extent that they determine the searchwas unreasonable. However, I disagree with theirreasoning that a canine sniff may be performed inan apartment hallway for the purpose of detectingcontraband inside the dwelling without a warrantbased on reasonable, articulable suspicion. Al-though I recognize that such a warrantless searchmay be appropriate in circumstances where the ex-pectation of privacy is lower, I believe a search of adwelling must be conducted pursuant to a warrantissued on the basis of probable cause.

Although the majority recognizes that there is agreater expectation of privacy in a dwelling than inobjects of a less intimate or transient nature, themajority nevertheless balances the interests of theindividual and the government to conclude that awarrantless intrusion based on reasonable suspicionwas the appropriate standard. I disagree with thisanalysis for two reasons. First, the analysis ignoresthe principle that searches and seizures without awarrant are presumptively unreasonable. SeePayton v. New York, 445 U.S. 573, 100 S.Ct. 1371,63 L.Ed.2d 639 (1980). Second, even if a balancingof interests is considered when a canine sniff occursin circumstances involving a dwelling, I believe the



interests of the privacy of the individual outweighthe government's interest in utilizing a canine sniffof a dwelling on anything less than a standard ofprobable cause.

**828 *815 It cannot be denied that “ ‘ “[f]reedomfrom intrusion into the home or dwelling is the ar-chetype of the privacy protection secured by theFourth Amendment.” ’ ” Payton, 445 U.S. at 587,100 S.Ct. 1371. As such,

[t]he Fourth Amendment protects the individual'sprivacy in a variety of settings. In none is thezone of privacy more clearly defined than whenbounded by the unambiguous physical dimen-sions of an individual's home-a zone that finds itsroots in clear and specific constitutional terms:“The right of the people to be secure in their ...houses ... shall not be violated.” That languageunequivocally establishes the proposition that“[a]t the very core [of the Fourth Amendment]stands the right of a man to retreat into his ownhome and there be free from unreasonable gov-ernmental intrusion.” Silverman v. United States,365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d734.[T]he Fourth Amendment has drawn a firmline at the entrance to the house. Absent exigentcircumstances, that threshold may not reasonablybe crossed without a warrant.

Payton, 445 U.S. at 589-90, 100 S.Ct. 1371. Ac-cordingly, we have held that a warrantless searchmust be strictly confined by the exigencies whichjustify its initiation. State v. Illig, 237 Neb. 598,467 N.W.2d 375 (1991), citing Mincey v. Arizona,437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290(1978). United States v. Thomas, 757 F.2d 1359 (2dCir.1985), and State v. Dearman, 92 Wash.App.630, 962 P.2d 850 (1998), both concluded that acanine sniff of an area which involved a heightenedexpectation of privacy constituted a search and,therefore, required a warrant based on probablecause. This view is supported by Arizona v. Hicks,480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347

(1987), in which the U.S. Supreme Court was un-willing to expand the plain view doctrine to allowfor a warrantless “cursory inspection” or somethingless than a “full-blown search” within a home onthe basis of reasonable suspicion. 480 U.S. at 328,107 S.Ct. 1149. The Court stated: “We are unwill-ing to send police and judges into a new thicket ofFourth Amendment law, to seek a creature of un-certain description that is neither a ‘plain view’ in-spection nor yet a ‘full-blown search.’ ” 480 U.S. at328-29, 107 S.Ct. 1149.

*816 In the context of canine sniffs, it has beensuggested that the area or object searched should bea determining factor in deciding whether a dog sniffmust be supported by a warrant based on probablecause. For example, a search of a home or personshould receive the greatest level of protection.However, a search of luggage at an airport is neces-sarily less intrusive because the privacy expecta-tions of passengers are lowered and thus might bepermissible based on reasonable suspicion. SeeKenneth L. Pollack, Stretching the Terry Doctrineto the Search for Evidence of Crime: Canine Sniffs,State Constitutions, and the Reasonable SuspicionStandard, 47 Vand. L.Rev. 803 (1994).

Courts that have adopted a reasonable suspicionstandard have done so on the basis that under thefacts presented, the search was reasonable due to adiminished expectation of privacy in the thingsearched, the importance of the law enforcement in-terests at stake, and the minimal intrusiveness ofthe dog sniff. U.S. v. Whitehead, 849 F.2d 849 (4thCir.1988). As a result, most of the cases that adopta standard of reasonable suspicion involve caninesniffs that occurred in areas outside of an individu-al's residence and where expectations of privacywere lower. See, e.g., U.S. v. Whitehead, supra(passenger train sleeping compartment); Pooley v.State, 705 P.2d 1293 (Alaska App.1985) (checkedairline luggage); People v. May, 886 P.2d 280(Colo.1994) (express mail package); People v. Un-ruh, 713 P.2d 370 (Colo.1986) (safe in police cus-



tody); State v. Waz, 240 Conn. 365, 692 A.2d 1217(1997) (U.S. mail parcel); State v. Pellicci, 133N.H. 523, 580 A.2d 710 (1990) (automobile);**829Com. v. Johnston, 515 Pa. 454, 530 A.2d 74(1987) (rented storage locker in public area). Othercourts, however, indicate that the higher standard ofprobable cause would be applied in cases involvingthe search of a dwelling where the expectation ofprivacy was higher. See U.S. v. Whitehead, supra(holding that reasonable suspicion standard appliedbecause train sleeping compartment was not ana-logous to higher expectation of privacy of hotelroom). See, also, State v. Waz, supra(distinguishing sniff of mail parcel from heightenedexpectation of privacy seen in Thomas ); U.S. v.Roby, 122 F.3d 1120, 1126 (8th Cir.1997) (Heaney,J., dissenting) (“[w]hile the use of trained dogs todetect narcotics is justifiable in airports or otherpublic *817 areas ... it should not be extended topermit governmental intrusion into the privacy of ahotel room”).

Of particular interest is a pair of cases from the Su-preme Court of Pennsylvania which illustrate thereasoning behind requiring a warrant based onprobable cause when a dwelling or person is the ob-ject of the search but perhaps allowing a warrant-less search based on reasonable suspicion when theprivacy interests are lessened. The majority in theinstant case relies on, and provides a lengthy quotefrom, the Pennsylvania case Johnston, supra. InJohnston, the Supreme Court of Pennsylvania de-termined that a canine sniff of a public storagelocker did not constitute a search under the U.S.Constitution but did constitute a search under thestate constitution. The court then stated that it wasunwilling to apply a balancing of interests in orderto determine whether a sniff constituted a searchbecause when making that determination, the bal-ance has been struck by the Fourth Amendment it-self. However, the court did find the balancing in-quiry appropriate in determining whether the caninesniff search necessarily involved the “full-blown”

warrant requirements of the Fourth Amendment.The court stated that much of the law enforcementutility of dogs would be lost if “full-blown” warrantprocedures were required but also recognized thatthere had to be some restraint on the use of them.The court then concluded that under the facts of thecase, the warrantless search of the locker was per-missible because the officers had articulated a reas-onable suspicion that drugs might be located in thestorage locker and the officers were lawfully situ-ated when they conducted the search.

Although the majority opinion provides a lengthyquote from Johnston, supra, it does not cite thelater Pennsylvania case of Com. v. Martin, 534 Pa.136, 626 A.2d 556 (1993). In Martin, a warrantlesscanine sniff search was conducted on a satchel car-ried by an individual. The court stated that the“middle ground” approach taken in Johnston wasappropriate in that case because the police intrusionwas minimal, because the police intrusion was dir-ected solely at contraband drugs, and because muchof the utility of the drug detection dogs would belost if a warrant was required. Martin, 534 Pa. at136, 626 A.2d at 560. The court then noted,however, that the protection of the privacy interest*818 one has in their person is a principal object ofFourth Amendment protection. Based on thisheightened privacy interest, the court held that inorder to conduct a canine sniff search on a person,the police must have probable cause to believe thatthe search will uncover contraband and that anyfurther search of the person beyond that allowed byTerry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20L.Ed.2d 889 (1968), must be pursuant to a warrant,although police could detain the subject for a reas-onable time while they sought the warrant. Thecourt further stated:

We are mindful that government has a compel-ling interest in eliminating the flow of illegaldrugs into our society, and we do not seek tofrustrate the effort to rid society of this scourge.But all things are not permissible even in the pur-



suit of a compelling state interest. The Constitu-tion does not cease to exist merely because thegovernment's interest is compelling. A policestate does not arise whenever crime gets out of**830 hand. In fact, all today's holding requiresis what police should themselves insist on: prob-able cause to believe that a crime has been com-mitted or contraband is to be found before thereis a police intrusion, beyond that permitted byJohnston and Terry, into one's person. [A] freesociety cannot remain free if police may use drugdetection dogs or any other crime detectiondevice without restraint. The restraint which wetoday impose on the use of drug detection dogsearches of persons is modest enough, in light ofour constitutional mandate.

Martin, 534 Pa. at 145, 626 A.2d at 561. Thus, it isclear that the Pennsylvania Supreme Court, whendealing with cases involving a heightened expecta-tion of privacy, requires probable cause.

I believe a rule allowing the warrantless caninesearch of an apartment based on reasonable suspi-cion is illogical and improper. Justifications statedby the court in Com. v. Johnston, 515 Pa. 454, 530A.2d 74 (1987), and most others for the adoption ofa reasonable suspicion standard are (1) in cases in-volving searches of public places or items such asluggage that are in transit, there is a diminished ex-pectation of privacy in those items; (2) the concernthat the utility of drug-detecting dogs will be lost ifwarrant procedures are required; and (3) the natureof the search is not intrusive, i.e., it does not requirethe opening of *819 the object or the entrance tothe place being searched and can only detect con-traband.

In the instant case, the expectation of privacy isheightened because it involves a residence. Theprotection of the privacy expectation an individualhas of their person and in their dwelling are thecore protections of the Fourth Amendment. Themajority appears to recognize this, but moves away

from the issue by referring to Ortiz' expectation ofprivacy in the hallway. I believe this reasoning isflawed. As previously discussed, the search in theinstant case was not a search of the hallway. It wasa search specifically aimed at contents inside Ortiz'apartment. Additionally, the difference between apublic area, or an item in transit, and the hallway ofan apartment building is significant. While it isshared by residents of the building and their guests,it does not experience the traffic of an airport orother public area. The existence of a semipublichallway should not limit the expectation of privacya person has in their apartment. As one justice hasstated, “I do not believe that the Fourth Amendmentprotects only those persons who can afford to livein a single-family residence with no surroundingcommon space.” U.S. v. Roby, 122 F.3d 1120, 1127(8th Cir.1997) (Heaney, J., dissenting).

Next, little of the utility of drug detection dogs islost by requiring a warrant prior to the canine sniffsearch of a dwelling, although this is a serious con-cern in cases of airport security and items beingsent in the mail. For example, the expectation ofprivacy in luggage is lower than the expectation ofprivacy in a dwelling, while the police interests inutilizing canines to detect contraband in luggage isquite high due to the transient nature of the objectsearched. When a transient item is at issue, officerssimply do not have the time or opportunities neces-sary to observe the owner of the luggage to thepoint where probable cause could be established.Thus, the use of a canine is of great utility to of-ficers in cases with facts such as those in UnitedStates v.Place, 462 U.S. 696, 103 S.Ct. 2637, 77L.Ed.2d 110 (1983), but is only one of a number ofavailable investigative tools when a dwelling isconcerned.

Finally, although a canine sniff is certainly less in-trusive than a “full-blown” search, it is in error torely on this factor in cases *820 involving coreFourth Amendment protections. Standing alone,this factor is not strong enough to justify allowing a



warrantless canine sniff of a dwelling based onreasonable suspicion. To so hold would be tan-tamount to stating that the protections of the FourthAmendment become lessened due to advances ininvestigative**831 procedures. This is a positionthat I am not willing to subscribe to. Therefore, Iconcur in the result.

Neb.,1999.State v. Ortiz257 Neb. 784, 600 N.W.2d 805

END OF DOCUMENT



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Supreme Court of the United States

Theodore PAYTON, Applicant, v.

NEW YORK. Obie RIDDICK, Applicant,

v. NEW YORK.

Nos. 78-5420, 78-5421.

Argued March 26, 1979. Reargued Oct. 9, 1979. Decided April 15, 1980.

Two defendants were convicted in the Courts of New

York, and the convictions were affirmed by the Su-

preme Court, Appellate Division, First Department,

55 A.D.2d 859, 390 N.Y.S.2d 769, and by the Su-

preme Court, Appellate Division, Second Depart-

ment, 56 A.D.2d 937, 392 N.Y.S.2d 848. The convic-

tions were again affirmed by the Court of Appeals of

New York, 45 N.Y.2d 300, 380 N.E.2d 224, 408

N.Y.S.2d 395. After noting probable jurisdiction of

the appeals to address a constitutional question, the

Supreme Court, Mr. Justice Stevens, held that: (1)

distinction between warrantless seizure in open area

and such a seizure on private premises is of equal

force when seizure of person is involved; (2) zone of

privacy is nowhere more clearly defined than when

bounded by unambiguous physical dimensions of

individual's home, and at very core of Fourth

Amendment stands right of man to retreat into his

own home and there be free from unreasonable gov-

ernment intrusion, and this is true as against seizures

of property and seizures of person; and (3) Fourth

Amendment prohibits police from making warran-

tless and nonconsensual entry into suspect's home in

order to make routine felony-arrest, and New York

statutes which in terms authorized police officers to

enter private residence without warrant and with

force if necessary to make routine felony arrest were

unconstitutional as inconsistent with Fourth Amend-

ment. Judgments reversed and cases remanded.

Mr. Justice Blackmun filed a concurring opinion. Mr. Justice White dissented and filed opinion in

which Mr. Chief Justice Burger and Mr. Justice

Rehnquist joined. Mr. Justice Rehnquist also filed a separate dissenting

opinion.

West Headnotes [1] Arrest 35 68(10) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(10) k. Entry Without Warrant

Impermissible. Most Cited Cases (Formerly 35k68.5(4), 35k68) Constitutional Law 92 4537 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)3 Law Enforcement 92k4533 Stop and Arrest 92k4537 k. Conduct. Most Cited

Cases (Formerly 92k262) Fourth Amendment to United States Constitution,

made applicable to states by Fourteenth Amendment,

prohibits police from making warrantless and non-

consensual entry into suspect's home in order to make

routine felony-arrest, and New York statutes which in

terms authorized police officers to enter private resi-

dence without warrant and with force if necessary to

make routine felony-arrest were unconstitutional as

inconsistent with Fourth Amendment.

U.S.C.A.Const. Amends. 4, 14; CPL N.Y. 120.80,

140.15, subd. 4.

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[2] Arrest 35 68(11) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(11) k. Announcement of Pur-

pose. Most Cited Cases (Formerly 35k68.5(5), 35k68) Officer's declaration of purpose to arrest defendant,

when knocking on defendant's door, is unnecessary

when exigent circumstances are present.

U.S.C.A.Const. Amend. 4. [3] Federal Courts 170B 508 170B Federal Courts 170BVII Supreme Court 170BVII(E) Review of Decisions of State

Courts 170Bk508 k. Time and Manner of Raising

Federal Question in State Court. Most Cited Cases Even if constitutional issue was not raised in trial

courts, it was properly before United States Supreme

Court for review where highest court of state had

passed upon it. [4] Searches and Seizures 349 124 349 Searches and Seizures 349II Warrants 349k123 Form and Contents of Warrant; Sig-

nature 349k124 k. Particularity or Generality and

Overbreadth in General. Most Cited Cases (Formerly 349k7(1)) Among evils motivating framing and adoption of

Fourth Amendment were indiscriminate searches and

seizures conducted under authority of “general war-

rants,” but evil to be prevented was broader than

abuse of general warrant. U.S.C.A. Const. Amend. 4. [5] Arrest 35 62 35 Arrest 35II On Criminal Charges 35k62 k. Authority to Arrest Without Warrant

in General. Most Cited Cases

Simple language of Fourth Amendment applies

equally to seizures of persons and to seizures of

property, and warrantless arrest of person is species

of “seizure” required by amendment to be reasonable.

U.S.C.A.Const. Amend. 4. [6] Searches and Seizures 349 23 349 Searches and Seizures 349I In General 349k23 k. Fourth Amendment and Reason-

ableness in General. Most Cited Cases (Formerly 349k7(10)) Physical entry of home is chief evil against which

wording of Fourth Amendment is directed.

U.S.C.A.Const. Amend. 4. [7] Searches and Seizures 349 24 349 Searches and Seizures 349I In General 349k24 k. Necessity of and Preference for

Warrant, and Exceptions in General. Most Cited

Cases (Formerly 349k7(5)) Protection afforded by Fourth Amendment consists in

requiring that inferences, allowed to be drawn by

reasonable men from evidence, be drawn by neutral

and detached magistrate, a judicial officer, and not by

policemen or government enforcement agent.

U.S.C.A.Const. Amend. 4. [8] Searches and Seizures 349 24 349 Searches and Seizures 349I In General 349k24 k. Necessity of and Preference for

Warrant, and Exceptions in General. Most Cited

Cases (Formerly 349k7(10)) It is basic principle of Fourth Amendment law that

searches and seizures inside home without warrant

are presumptively unreasonable, and that search or

seizure carried out on suspect's premises without war-

rant is per se unreasonable unless police can show

that it falls within one of carefully designed set of

exceptions based on presence of “exigent circum-

stances.” U.S.C.A.Const. Amend. 4.

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


[9] Searches and Seizures 349 47.1 349 Searches and Seizures 349I In General 349k47 Plain View from Lawful Vantage

Point 349k47.1 k. In General. Most Cited Cases (Formerly 349k47, 349k3.3(4)) Seizure of property in plain view involves no inva-

sion of privacy and is presumptively reasonable, as-

suming that there is probable cause to associate prop-

erty with criminal activity, and objects such as weap-

ons or contraband found in public place may be

seized without warrant. U.S.C.A.Const. Amend. 4. [10] Arrest 35 68(7) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(7) k. In General. Most Cited

Cases (Formerly 35k68.5(1), 35k68) Distinction between warrantless seizure in open area

and such a seizure on private premises is of equal

force when seizure of person is involved.

U.S.C.A.Const. Amend. 4. [11] Searches and Seizures 349 44 349 Searches and Seizures 349I In General 349k42 Emergencies and Exigent Circum-

stances; Opportunity to Obtain Warrant 349k44 k. Presence of Probable Cause.

Most Cited Cases (Formerly 349k3.3(2)) Probable cause for belief that certain articles subject

to seizure are in dwelling cannot alone justify search

without warrant. U.S.C.A.Const. Amend. 4. [12] Arrest 35 65 35 Arrest 35II On Criminal Charges 35k65 k. Authority Under Warrant. Most

Cited Cases Searches and Seizures 349 148 349 Searches and Seizures 349III Execution and Return of Warrants 349k147 Scope of Search 349k148 k. Places, Persons, and Things

Within Scope of Warrant. Most Cited Cases (Formerly 349k7(10)) Area that may legally be searched is broader when

executing search warrant than when executing arrest

warrant in home, but zone of privacy is nowhere

more clearly defined than when bounded by unambi-

guous physical dimensions of individual's home, and

at very core of Fourth Amendment stands right of

man to retreat into his own home and there be free

from unreasonable government intrusion, and this is

true as against seizures of property and seizures of

person. U.S.C.A.Const. Amend. 4. [13] Searches and Seizures 349 30 349 Searches and Seizures 349I In General 349k30 k. Items Subject to Seizure in Gen-

eral; Nexus. Most Cited Cases (Formerly 349k7(10)) Category of property that may be seized with war-

rant, consistent with Fourth Amendment, includes

mere evidence. U.S.C.A.Const. Amend. 4. [14] Telecommunications 372 1428 372 Telecommunications 372X Interception or Disclosure of Electronic

Communications; Electronic Surveillance 372X(A) In General 372k1427 Constitutional and Statutory

Provisions 372k1428 k. In General. Most Cited

Cases (Formerly 372k492, 349k7(10)) Prohibitions of Fourth Amendment protect against

invasion, by electronic eavesdropping, of individual's

privacy in phone booth not owned by him.

U.S.C.A.Const. Amend. 4.

100 S.Ct. 1371 Page 4

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


[15] Criminal Law 110 99 110 Criminal Law 110VIII Jurisdiction 110k99 k. Mode of Acquiring Jurisdiction.

Most Cited Cases That arrest was illegal does not preclude trial of de-

fendant. U.S.C.A.Const. Amend. 4. [16] Constitutional Law 92 990 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional

Questions 92VI(C)3 Presumptions and Construction

as to Constitutionality 92k990 k. In General. Most Cited Cases (Formerly 92k45) Longstanding, widespread practice is not, as such,

immune from constitutional scrutiny, but neither is it

to be lightly brushed aside, and this is particularly so

when constitutional standard is as amorphous as word

“reasonable” and when customary and contemporary

norms necessarily play large role in constitutional

analysis. U.S.C.A.Const. Amend. 4. [17] Federal Courts 170B 505 170B Federal Courts 170BVII Supreme Court 170BVII(E) Review of Decisions of State

Courts 170Bk504 Nature of Decisions or Ques-

tions Involved 170Bk505 k. Validity of State Constitu-

tion or Statutes. Most Cited Cases By invoking state constitutional provision, state court

immunizes its decision from review by United States

Supreme Court. [18] Arrest 35 68(7) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(7) k. In General. Most Cited

Cases (Formerly 35k68.5(1), 35k65) Arrest 35 68(12) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(12) k. Execution of Warrant.

Most Cited Cases (Formerly 35k68.5(6), 349k7(10)) If there is sufficient evidence of citizen's participation

in felony to persuade judicial officer that his arrest is

justified, it is constitutionally reasonable to require

him to open his doors to officers of the law, and thus

for Fourth Amendment purposes arrest warrant

founded on probable cause implicitly carries with it

limited authority to open dwelling in which suspect

lives when there is reason to believe suspect is

within. U.S.C.A.Const. Amend. 4.

**1373 Syllabus FN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared

by the Reporter of Decisions for the conven-

ience of the reader. See United States v. De-

troit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287, 50 L.Ed. 499. *573 These appeals challenge the constitutionality of

New York statutes authorizing police officers to enter

a private residence without a warrant and with force,

if necessary, to make a routine felony arrest. In each

of the appeals, police officers, acting with probable

cause but without warrants, had gone to the appel-

lant's residence to arrest the appellant on a felony

charge and had entered the premises without the con-

sent of any occupant. In each case, the New York

trial judge held that the warrantless entry was author-

ized by New York statutes and refused to suppress

evidence that was seized upon the entry. Treating

both cases as involving routine arrests in which there

was ample time to obtain a warrant, the New York

Court of Appeals, in a single opinion, ultimately af-

firmed the convictions of both appellants.

100 S.Ct. 1371 Page 5

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Held : The Fourth Amendment, made applicable to

the States by the Fourteenth Amendment, prohibits

the police from making a warrantless and nonconsen-

sual entry into a suspect's home in order to make a

routine felony arrest. Pp. 1378-1388. (a) The physical entry of the home is the chief evil

against which the wording of the Fourth Amendment

is directed. To be arrested in the home involves not

only the invasion attendant to all arrests, but also an

invasion of the sanctity of the home, which is too

substantial an invasion to allow without a warrant, in

the absence of exigent circumstances, even when it is

accomplished under statutory authority and when

probable cause is present. In terms that apply equally

to seizures of property and to seizures of persons, the

Fourth Amendment has drawn a firm line at the en-

trance to the house. Absent exigent circumstances,

that threshold may not reasonably be crossed without

a warrant. Pp. 1378-1388. (b) The reasons for upholding warrantless arrests in a

public place, cf. United States v. Watson, 423 U.S.

411, 96 S.Ct. 820, 46 L.Ed.2d 598, do not apply to

warrantless invasions of the privacy of the home. The

common-law rule on warrantless home arrests was

not as clear as the rule on arrests in public places; the

weight of authority as it appeared to the Framers of

the *574 Fourth Amendment was to the effect that a

warrant was required for a home arrest, or at the

minimum that there were substantial risks in proceed-

ing without one. Although a majority of the States

that have taken a position on the question permit war-

rantless home arrests even in the absence of exigent

circumstances, there is an obvious declining trend,

and there is by no means the kind of virtual unanim-

ity on this question that was present in United States

v. Watson, supra, with regard to warrantless public

arrests. And, unlike the situation in Watson no federal

statutes have been cited to indicate any congressional

determination that warrantless entries into the home

are “reasonable.” Pp. 1382-1388. (c) For Fourth Amendment purposes, an arrest war-

rant founded on probable cause implicitly carries

with it the limited authority to enter a dwelling in

which the suspect lives when there is reason to be-

lieve the suspect is within. P. 1388.

**1374 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380

N.E.2d 224, reversed and remanded. William E. Hellerstein, New York City, for appellant

in both cases. Peter L. Zimroth, New York City, for appellee in

both cases. Mr. Justice STEVENS delivered the opinion of the

Court. These appeals challenge the constitutionality of New

York statutes that authorize police officers to enter a

private residence without a warrant and with force, if

necessary, to make a routine felony arrest. The important constitutional question presented by

this challenge has been expressly left open in a num-

ber of our prior opinions. In United States v. Watson,

423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, we up-

held a warrantless “midday public arrest,” expressly

noting that the case did not pose “the still unsettled

question*575 . . . ‘whether and under what circum-

stances an officer may enter a suspect's home to make

a warrantless arrest.’ ” Id., at 418, n. 6, 96 S.Ct., at

825, n. 6.FN1

The question has been answered in dif-

ferent ways by other appellate courts. The Supreme

Court of Florida rejected the constitutional attack,FN2

as did the New York Court of Appeals, 45 N.Y.2d

300, 408 N.Y.S.2d 395, 380 N.E.2d 224 in this case.

The courts of last resort in 10 other States, however,

have held that unless special circumstances are pre-

sent, warrantless arrests in the home are unconstitu-

tional.FN3

Of the seven United States Courts of Ap-

peals that have considered the question, five have

expressed the opinion that such arrests are unconsti-

tutional.FN4

FN1. See also United States v. Watson, 423

U.S., at 433, 96 S.Ct., at 832 (STEWART,

J., concurring); id., at 432-433, 96 S.Ct., at

832 (POWELL, J., concurring); Gerstein v.

Pugh, 420 U.S. 103, 113, n. 13, 95 S.Ct.

854, 863 n. 13, 43 L.Ed.2d 54; Coolidge v.

New Hampshire, 403 U.S. 443, 474-481, 91

S.Ct. 2022, 2042-2045, 29 L.Ed.2d 564;

Jones v. United States, 357 U.S. 493, 499-

500, 78 S.Ct. 1253, 1257-1258, 2 L.Ed.2d

1514. Cf. United States v. Santana, 427 U.S.

100 S.Ct. 1371 Page 6

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


38, 96 S.Ct. 2406, 49 L.Ed.2d 300.

FN2. See State v. Perez, 277 So.2d 778

(1973), cert. denied, 414 U.S. 1064, 94 S.Ct.

570, 38 L.Ed.2d 468.

FN3. See State v. Cook, 115 Ariz. 188, 564

P.2d 877 (1977) (resting on both state and

federal constitutional provisions); People v.

Ramey, 16 Cal.3d 263, 545 P.2d 1333

(1976), cert. denied, 429 U.S. 929, 97 S.Ct.

335, 50 L.Ed.2d 299 (state and federal);

People v. Moreno, 176 Colo. 488, 491 P.2d

575 (1971) (federal only); State v. Jones,

274 N.W.2d 273 (Iowa 1979) (state and fed-

eral); State v. Platten, 225 Kan. 764, 594

P.2d 201 (1979) (state and federal);

Commonwealth v. Forde, 367 Mass. 798,

329 N.E.2d 717 (1975) (federal only); State

v. Olson, 287 Or. 157, 598 P.2d 670 (1979)

(state and federal); Commonwealth v. Wil-

liams, 483 Pa. 293, 396 A.2d 1177 (1978)

(federal only); State v. McNeal, 251 S.E.2d

484 (W.Va.1978) (state and federal); Laasch

v. State, 84 Wis.2d 587, 267 N.W.2d 278

(1978) (state and federal).

FN4. Compare United States v. Reed, 572

F.2d 412 (CA2 1978), cert. denied, sub nom.

Goldsmith v. United States, 439 U.S. 913, 99

S.Ct. 283, 58 L.Ed.2d 259; United States v.

Killebrew, 560 F.2d 729 (CA6 1977);

United States v. Shye, 492 F.2d 886 (CA6

1974); United States v. Houle, 603 F.2d

1297 (CA8 1979); United States v. Prescott,

581 F.2d 1343 (CA9 1978); Dorman v.

United States, 140 U.S.App.D.C. 313, 435

F.2d 385 (1970), with United States v. Wil-

liams, 573 F.2d 348 (CA5 1978); United

States ex rel. Wright v. Woods, 432 F.2d

1143 (CA7 1970), cert. denied, 401 U.S.

966, 91 S.Ct. 983, 28 L.Ed.2d 248. Three

other Circuits have assumed without decid-

ing that warrantless home arrests are uncon-

stitutional. United States v. Bradley, 455

F.2d 1181 (CA1 1972); United States v.

Davis, 461 F.2d 1026 (CA3 1972); Vance v.

North Carolina, 432 F.2d 984 (CA4 1970).

And one Circuit has upheld such an arrest

without discussing the constitutional issue.

Michael v. United States, 393 F.2d 22

(CA10 1968). *576 [1] Last Term we noted probable jurisdiction of

these appeals in order to address that question. 439

U.S. 1044, 99 S.Ct. 718, 58 L.Ed.2d 703. After hear-

ing oral argument, we set the case for reargument this

Term. 441 U.S. 930, 99 S.Ct. 2049, 60 L.Ed.2d 658.

We now reverse the New York Court of Appeals and

hold that the Fourth Amendment to the United States

Constitution, made applicable to the States by the

Fourteenth Amendment, **1375Mapp v. Ohio, 367

U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wolf v.

Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782,

prohibits the police from making a warrantless and

nonconsensual entry into a suspect's home in order to

make a routine felony arrest. We first state the facts of both cases in some detail

and put to one side certain related questions that are

not presented by these records. We then explain why

the New York statutes are not consistent with the

Fourth Amendment and why the reasons for uphold-

ing warrantless arrests in a public place do not apply

to warrantless invasions of the privacy of the home.

I On January 14, 1970, after two days of intensive in-

vestigation, New York detectives had assembled evi-

dence sufficient to establish probable cause to believe

that Theodore Payton had murdered the manager of a

gas station two days earlier. At about 7:30 a. m. on

January 15, six officers went to Payton's apartment in

the Bronx, intending to arrest him. They had not ob-

tained a warrant. Although light and music emanated

from the apartment, there was no response to their

knock on the metal door. They summoned emergency

assistance and, about 30 minutes later, used crowbars

to break open the door and enter the apartment. No

one was there. In plain view, however, was a .30-

caliber shell casing that was *577 seized and later

admitted into evidence at Payton's murder trial.FN5

FN5. A thorough search of the apartment re-

sulted in the seizure of additional evidence

tending to prove Payton's guilt, but the

prosecutor stipulated that the officers' war-

100 S.Ct. 1371 Page 7

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


rantless search of the apartment was illegal

and that all the seized evidence except the

shell casing should be suppressed.

“MR. JACOBS: There's no question that

the evidence that was found in bureau

drawers and in the closet was illegally ob-

tained. I'm perfectly willing to concede

that, and I do so in my memorandum of

law. There's no question about that.” App.

4. [2] In due course Payton surrendered to the police,

was indicted for murder, and moved to suppress the

evidence taken from his apartment. The trial judge

held that the warrantless and forcible entry was

authorized by the New York Code of Criminal Pro-

cedure,FN6

and that the evidence in plain view was

properly seized. He found that exigent circumstances

justified the officers' failure to announce their pur-

pose before entering the apartment as required by the

statute.FN7

He had no *578 occasion, however, to

decide whether those circumstances also **1376

would have justified the failure to obtain a warrant,

because he concluded that the warrantless entry was

adequately supported by the statute without regard to

the circumstances. The Appellate Division, First De-

partment, summarily affirmed.FN8

FN6. “At the time in question, January 15,

1970, the law applicable to the police con-

duct related above was governed by the

Code of Criminal Procedure. Section 177 of

the Code of Criminal Procedure as applica-

ble to this case recited: ‘A peace officer

may, without a warrant, arrest a person, . . .

3. When a felony has in fact been commit-

ted, and he has reasonable cause for believ-

ing the person to be arrested to have com-

mitted it.’ Section 178 of the Code of

Criminal Procedure provided: ‘To make an

arrest, as provided in the last section [177],

the officer may break open an outer or inner

door or window of a building, if, after notice

of his office and purpose, he be refused ad-

mittance.’ ” 84 Misc.2d 973, 974-975, 376

N.Y.S.2d 779, 780 (Sup.Ct., Trial Term,

N.Y. County, 1974).

FN7. “Although Detective Malfer knocked

on the defendant's door, it is not established

that at this time he announced that his pur-

pose was to arrest the defendant. Such a dec-

laration of purpose is unnecessary when exi-

gent circumstances are present ( People v.

Wojciechowski, 31 A.D.2d 658, 296

N.Y.S.2d 524; People v. McIlwain, 28

A.D.2d 711, 281 N.Y.S.2d 218).

“ ‘Case law has made exceptions from the

statute or common-law rules for exigent

circumstances which may allow dispensa-

tion with the notice . . . It has also been

held or suggested that notice is not re-

quired if there is reason to believe that it

will allow an escape or increase unrea-

sonably the physical risk to the police or

to innocent persons.’ ( People v. Floyd, 26

N.Y.2d 558, 562, 312 N.Y.S.2d 193, 260

N.E.2d 815.)

“The facts of this matter indicate that a

grave offense had been committed; that

the suspect was reasonably believed to be

armed and could be a danger to the com-

munity; that a clear showing of probable

cause existed and that there was strong

reason to believe that the suspect was in

the premises being entered and that he

would escape if not swiftly apprehended.

From this fact the court finds that exigent

circumstances existed to justify noncom-

pliance with section 178. The court holds,

therefore, that the entry into defendant's

apartment was valid.” Id., at 975, 376

N.Y.S.2d, at 780-781.

FN8. 55 A.D.2d 859, 390 N.Y.S.2d 769

(1976). On March 14, 1974, Obie Riddick was arrested for

the commission of two armed robberies that had oc-

curred in 1971. He had been identified by the victims

in June 1973, and in January 1974 the police had

learned his address. They did not obtain a warrant for

his arrest. At about noon on March 14, a detective,

accompanied by three other officers, knocked on the

door of the Queens house where Riddick was living.

100 S.Ct. 1371 Page 8

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


When his young son opened the door, they could see

Riddick sitting in bed covered by a sheet. They en-

tered the house and placed him under arrest. Before

permitting him to dress, they opened a chest of draw-

ers two feet from the bed in search of weapons and

found narcotics and related paraphernalia. Riddick

was subsequently indicted on narcotics charges. At a

suppression hearing, the trial judge held that the war-

rantless entry into his home was authorized by the

revised New York statute,FN9

and that the search of

the immediate*579 area was reasonable under

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23

L.Ed.2d 685. FN10

The Appellate Division, Second

Department, affirmed the denial of the suppression

motion.FN11

FN9. New York Crim.Proc.Law § 140.15(4)

(McKinney 1971) provides, with respect to

arrest without a warrant:

“In order to effect such an arrest, a police

officer may enter premises in which he

reasonably believes such person to be pre-

sent, under the same circumstances and in

the same manner as would be authorized,

by the provisions of subdivisions four and

five of section 120.80, if he were attempt-

ing to make such arrest pursuant to a war-

rant of arrest.”

Section 120.80, governing execution of

arrest warrants, provides in relevant part:

“4. In order to effect the arrest, the police

officer may, under circumstances and in a

manner prescribed in this subdivision, en-

ter any premises in which he reasonably

believes the defendant to be present. Be-

fore such entry, he must give, or make

reasonable effort to give, notice of his

authority and purpose to an occupant

thereof, unless there is reasonable cause to

believe that the giving of such notice will:

“(a) Result in the defendant escaping or

attempting to escape; or

“(b) Endanger the life or safety of the of-

ficer or another person; or

“(c) Result in the destruction, damaging or

secretion of material evidence.

“5. If the officer is authorized to enter

premises without giving notice of his

authority and purpose, or if after giving

such notice he is not admitted, he may en-

ter such premises, and by a breaking if

necessary.”

FN10. App. 63-66.

FN11. 56 A.D.2d 937, 392 N.Y.S.2d 848

(1977). One justice dissented on the ground

that the officers' failure to announce their

authority and purpose before entering the

house made the arrest illegal as a matter of

state law. The New York Court of Appeals, in a single opinion,

affirmed the convictions of both Payton and Riddick.

45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224

(1978). The court recognized that the question

whether and under what circumstances an officer

may enter a suspect's home to make a warrantless

arrest had not been settled either by that court or by

this Court.FN12

In answering that question, the major-

ity of four judges relied primarily on its perception

that there is a

FN12. 45 N.Y.2d, at 309-310, 408

N.Y.S.2d, at 399, 380 N.E.2d, at 228. “. . . substantial difference between the intrusion

which attends an entry for the purpose of searching

the premises and that which results from an entry for

the purpose of *580 making an arrest, and [a] signifi-

cant difference in the governmental interest in

achieving the objective of the intrusion in the two

instances.” Id., at 310, 408 N.Y.S.2d, at 399, 380

N.E.2d, at 228-229. FN13

FN13. The majority continued:

“In the case of the search, unless appro-

priately limited by the terms of a warrant,

100 S.Ct. 1371 Page 9

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


the incursion on the householder's domain

normally will be both more extensive and

more intensive and the resulting invasion

of his privacy of greater magnitude than

what might be expected to occur on an en-

try made for the purpose of effecting his

arrest. A search by its nature contemplates

a possibly thorough rummaging through

possessions, with concurrent upheaval of

the owner's chosen or random placement

of goods and articles and disclosure to the

searchers of a myriad of personal items

and details which he would expect to be

free from scrutiny by uninvited eyes. The

householder by the entry and search of his

residence is stripped bare, in greater or

lesser degree, of the privacy which nor-

mally surrounds him in his daily living,

and, if he should be absent, to an extent of

which he will be unaware.

“Entry for the purpose of arrest may be

expected to be quite different. While the

taking into custody of the person of the

householder is unquestionably of grave

import, there is no accompanying prying

into the area of expected privacy attending

his possessions and affairs. That personal

seizure alone does not require a warrant

was established by United States v. Wat-

son (423 U.S. 411, 96 S.Ct. 820, 46

L.Ed.2d 598, supra ), which upheld a war-

rantless arrest made in a public place. In

view of the minimal intrusion on the ele-

ments of privacy of the home which re-

sults from entry on the premises for mak-

ing an arrest (as compared with the gross

intrusion which attends the arrest itself),

we perceive no sufficient reason for dis-

tinguishing between an arrest in a public

place and an arrest in a residence. To the

extent that an arrest will always be dis-

tasteful or offensive, there is little reason

to assume that arrest within the home is

any more so than arrest in a public place;

on the contrary, it may well be that be-

cause of the added exposure the latter may

be more objectionable.

“At least as important, and perhaps even

more so, in concluding that entries to

make arrests are not ‘unreasonable’-the

substantive test under the constitutional

proscriptions-is the objective for which

they are made, viz., the arrest of one rea-

sonably believed to have committed a fel-

ony, with resultant protection to the com-

munity. The ‘reasonableness' of any gov-

ernmental intrusion is to be judged from

two perspectives-that of the defendant,

considering the degree and scope of the

invasion of his person or property; that of

the People, weighing the objective and

imperative of governmental action. The

community's interest in the apprehension

of criminal suspects is of a higher order

than is its concern for the recovery of con-

traband or evidence; normally the hazards

created by the failure to apprehend far ex-

ceed the risks which may follow nonre-

covery.” Id., at 310-311, 408 N.Y.S.2d, at

399, 380 N.E.2d, at 229. *581 **1377 The majority supported its holding by

noting the “apparent historical acceptance” of war-

rantless entries to make felony arrests, both in the

English common law and in the practice of many

American States.FN14

FN14. “The apparent historical acceptance

in the English common law of warrantless

entries to make felony arrests (2 Hale, Histo-

ria Placitorum Coronae, History of Pleas of

Crown [1st Amer. ed., 1847], p. 92; Chitty,

Criminal Law [3d Amer., from 2d London

ed., 1836] 22-23), and the existence of statu-

tory authority for such entries in this State

since the enactment of the Code of Criminal

Procedure in 1881 argue against a holding of

unconstitutionality and substantiate the rea-

sonableness of such procedure. . . .

“Nor do we ignore the fact that a number

of jurisdictions other than our own have

also enacted statutes authorizing warran-

tless entries of buildings (without excep-

tion for homes) for purposes of arrest. The

American Law Institute's Model Code of

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


Pre-Arraignment Procedure makes similar

provision in section 120.6, with suggested

special restrictions only as to nighttime

entries.” Id., at 311-312, 408 N.Y.S.2d, at

400, 380 N.E.2d, at 229-230 (footnotes

omitted). Three members of the New York Court of Appeals

dissented on this issue because they believed that the

Constitution requires the police to obtain a “warrant

to enter a home in order to arrest or seize a person,

unless there are exigent circumstances.” FN15

Starting

from the premise that, except in carefully circum-

scribed instances, “the Fourth Amendment forbids

police entry into a private home to search for and

seize an object without a warrant,” FN16

the dissenters

reasoned that an arrest of the person involves an even

greater invasion of privacy and should therefore be

attended with at least as *582 great a measure of con-

stitutional protection.FN17

The dissenters noted “the

existence**1378 of statutes and the American Law

Institute imprimatur codifying the common-law rule

authorizing warrantless arrests in private homes” and

acknowledged that “the statutory authority of a police

officer to make a warrantless arrest in this State has

been in effect for almost 100 years,” but concluded

that “neither antiquity nor legislative unanimity can

be determinative of the grave constitutional question

presented” and “can never be a substitute for rea-

soned analysis.” FN18

FN15. Id., at 315, 408 N.Y.S.2d, at 403, 380

N.E.2d, at 232 (Wachtler, J., dissenting).

FN16. Id., at 319-320, 408 N.Y.S.2d, at 406,

380 N.E.2d, at 235 (Cooke, J., dissenting).

FN17. “Although the point has not been

squarely adjudicated since Coolidge [v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29

L.Ed.2d 564,] (see United States v. Watson,

423 U.S. 411, 418, n. 6, 96 S.Ct. 820 [825 n.

6], 46 L.Ed.2d 598), its proper resolution, it

is submitted, is manifest. At the core of the

Fourth Amendment, whether in the context

of a search or an arrest, is the fundamental

concept that any governmental intrusion into

an individual's home or expectation of pri-

vacy must be strictly circumscribed (see, e.

g., Boyd v. United States, 116 U.S. 616, 630,

6 S.Ct. 524 [532,] 29 L.Ed. 746; Camara v.

Municipal Ct., 387 U.S. 523, 528, 87 S.Ct.

1727 [, 1730,] 18 L.Ed.2d 930). To achieve

that end, the framers of the amendment in-

terposed the warrant requirement between

the public and the police, reflecting their

conviction that the decision to enter a dwell-

ing should not rest with the officer in the

field, but rather with a detached and disin-

terested Magistrate ( McDonald v. United

States, 335 U.S. 451, 455-456, 69 S.Ct. 191,

[193,] 93 L.Ed. 153; Johnson v. United

States, 333 U.S. 10, 13-14, 68 S.Ct. 367,

[368-369,] 92 L.Ed. 436). Inasmuch as the

purpose of the Fourth Amendment is to

guard against arbitrary governmental inva-

sions of the home, the necessity of prior ju-

dicial approval should control any contem-

plated entry, regardless of the purpose for

which that entry is sought. By definition, ar-

rest entries must be included within the

scope of the amendment, for while such en-

tries are for persons, not things, they are,

nonetheless, violations of privacy, the chief

evil that the Fourth Amendment was de-

signed to deter ( Silverman v. United States,

365 U.S. 505, 511, 81 S.Ct. 679, [682,] 5

L.Ed.2d 734).” Id., at 320-321, 408

N.Y.S.2d, at 406, 380 N.E.2d, at 235-236

(Cooke, J., dissenting).

FN18. Id., at 324, 408 N.Y.S.2d, at 409, 380

N.E.2d, at 238 (Cooke, J., dissenting). [3] Before addressing the narrow question presented

by these appeals, FN19

we put to one side other related

problems that are *583 not presented today. Al-

though it is arguable that the warrantless entry to

effect Payton's arrest might have been justified by

exigent circumstances, none of the New York courts

relied on any such justification. The Court of Appeals

majority treated both Payton's and Riddick's cases as

involving routine arrests in which there was ample

time to obtain a warrant,FN20

and we will do the same.

Accordingly, we have no occasion to consider the

sort of emergency or dangerous situation, described

in our cases as “exigent circumstances,” that would

justify a warrantless entry into a home for the pur-

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pose of either arrest or search.

FN19. Although it is not clear from the re-

cord that appellants raised this constitutional

issue in the trial courts, since the highest

court of the State passed on it, there is no

doubt that it is properly presented for review

by this Court. See Raley v. Ohio, 360 U.S.

423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d

1344.

FN20. 45 N.Y.2d, at 308, 408 N.Y.S.2d, at

398, 380 N.E.2d, at 228. Judge Wachtler in

dissent, however, would have upheld the

warrantless entry in Payton's case on exi-

gency grounds, and therefore agreed with

the majority's refusal to suppress the shell

casing. See id., at 315, 408 N.Y.S.2d, at 403,

380 N.E.2d, at 232. Nor do these cases raise any question concerning the

authority of the police, without either a search or ar-

rest warrant, to enter a third party's home to arrest a

suspect. The police broke into Payton's apartment

intending to arrest Payton, and they arrested Riddick

in his own dwelling. We also note that in neither case

is it argued that the police lacked probable cause to

believe that the suspect was at home when they en-

tered. Finally, in both cases we are dealing with en-

tries into homes made without the consent of any

occupant. In Payton, the police used crowbars to

break down the door and in Riddick, although his 3-

year-old son answered the door, the police entered

before Riddick had an opportunity either to object or

to consent.

II [4][5][6][7] It is familiar history that indiscriminate

searches and seizures conducted under the authority

of “general warrants” were the immediate evils that

motivated the framing and adoption of the Fourth

Amendment.FN21

Indeed, as originally *584 pro-

posed**1379 in the House of Representatives, the

draft contained only one clause, which directly im-

posed limitations on the issuance of warrants, but

imposed no express restrictions on warrantless

searches or seizures.FN22

As it was ultimately

adopted, however, the Amendment contained two

separate clauses, the first protecting the basic right to

be free from unreasonable searches and seizures and

the second requiring that warrants be particular and

supported by probable cause.FN23

The Amendment

provides:

FN21. “Vivid in the memory of the newly

independent Americans were those general

warrants known as writs of assistance under

which officers of the Crown had so bedev-

iled the colonists. The hated writs of assis-

tance had given customs officials blanket

authority to search where they pleased for

goods imported in violation of British tax

laws. They were denounced by James Otis

as ‘the worst instrument of arbitrary power,

the most destructive of English liberty, and

the fundamental principles of law, that ever

was found in an English law book,’ because

they placed ‘the liberty of every man in the

hands of every petty officer.’ The historic

occasion of that denunciation, in 1761 at

Boston, has been characterized as ‘perhaps

the most prominent event which inaugurated

the resistance of the colonies to the oppres-

sions of the mother country. “Then and

there,” said John Adams, “then and there

was the first scene of the first act of opposi-

tion to the arbitrary claims of Great Britain.

Then and there the child Independence was

born.” ’ Boyd v. United States, 116 U.S. 616,

625, 6 S.Ct. 524, 529, 29 L.Ed. 746.”

Stanford v. Texas, 379 U.S. 476, 481-482,

85 S.Ct. 506, 510, 13 L.Ed.2d 431.

See also J. Landynski, Search and Seizure

and the Supreme Court 19-48 (1966); N.

Lasson, The History and Development of

the Fourth Amendment to the United

States Constitution 13-78 (1937); T. Tay-

lor, Two Studies in Constitutional Inter-

pretation 19-44 (1969).

FN22. “ ‘The rights of the people to be se-

cured in their persons, their houses, their pa-

pers, and their other property, from all un-

reasonable searches and seizures, shall not

be violated by warrants issued without prob-

able cause, supported by oath or affirmation,

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or not particularly describing the places to

be searched, or the persons or things to be

seized.’ Annals of Cong., 1st Cong., 1st

sess., p. 452.” Lasson, supra, at 100, n. 77.

FN23. “The general right of security from

unreasonable search and seizure was given a

sanction of its own and the amendment thus

intentionally given a broader scope. That the

prohibition against ‘unreasonable searches'

was intended, accordingly, to cover some-

thing other than the form of the warrant is a

question no longer left to implication to be

derived from the phraseology of the

Amendment.” Lasson, supra, at 103. (Foot-

note omitted.) “The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches *585 and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.” It is thus perfectly clear that the evil the Amendment

was designed to prevent was broader than the abuse

of a general warrant. Unreasonable searches or sei-

zures conducted without any warrant at all are con-

demned by the plain language of the first clause of

the Amendment. Almost a century ago the Court

stated in resounding terms that the principles re-

flected in the Amendment “reached farther than the

concrete form” of the specific cases that gave it birth,

and “apply to all invasions on the part of the govern-

ment and its employés of the sanctity of a man's

home and the privacies of life.” Boyd v. United

States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29

L.Ed.2d 746. Without pausing to consider whether

that broad language may require some qualification,

it is sufficient to note that the warrantless arrest of a

person is a species of seizure required by the

Amendment to be reasonable. Beck v. Ohio, 379 U.S.

89, 85 S.Ct. 223, 13 L.Ed.2d 142. Cf. Delaware v.

Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660.

Indeed, as Mr. Justice POWELL noted in his concur-

rence in United States v. Watson, the arrest of a per-

son is “quintessentially a seizure.” 423 U.S., at 428,

96 S.Ct., at 830.

The simple language of the Amendment applies

equally to seizures of persons and to seizures of

property. Our analysis in this case may therefore

properly commence with rules that have been well

established in Fourth Amendment litigation involving

tangible items. As the Court reiterated just a few

years ago, the “physical entry of the home is the chief

evil against which the wording of the Fourth

Amendment is directed.”**1380 *586United States v.

United States District Court, 407 U.S. 297, 313, 92

S.Ct. 2125, 2134, 32 L.Ed.2d 752. And we have long

adhered to the view that the warrant procedure mini-

mizes the danger of needless intrusions of that

sort.FN24

FN24. As Mr. Justice Jackson so cogently

observed in Johnson v. United States, 333

U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed.

436:

“The point of the Fourth Amendment,

which often is not grasped by zealous of-

ficers, is not that it denies law enforce-

ment the support of the usual inferences

which reasonable men draw from evi-

dence. Its protection consists in requiring

that those inferences be drawn by a neu-

tral and detached magistrate instead of be-

ing judged by the officer engaged in the

often competitive enterprise of ferreting

out crime. Any assumption that evidence

sufficient to support a magistrate's disin-

terested determination to issue a search

warrant will justify the officers in making

a search without a warrant would reduce

the Amendment to a nullity and leave the

people's homes secure only in the discre-

tion of police officers. Crime, even in the

privacy of one's own quarters, is, of

course, of grave concern to society, and

the law allows such crime to be reached

on proper showing. The right of officers

to thrust themselves into a home is also a

grave concern, not only to the individual

but to a society which chooses to dwell in

reasonable security and freedom from

surveillance. When the right of privacy

must reasonably yield to the right of

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


search is, as a rule, to be decided by a ju-

dicial officer, not by a policeman or Gov-

ernment enforcement agent.” (Footnotes

omitted.) [8][9] It is a “basic principle of Fourth Amendment

law” that searches and seizures inside a home without

a warrant are presumptively unreasonable. FN25

Yet is

is also well settled that *587 objects such as weapons

or contraband found in a public place may be seized

by the police without a warrant. The seizure of prop-

erty in plain view involves no invasion of privacy and

is presumptively reasonable, assuming that there is

probable cause to associate the property with criminal

activity. The distinction between a warrantless sei-

zure in an open area and such a seizure on private

premises was plainly stated in G. M. Leasing Corp. v.

United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629,

50 L.Ed.2d 530:

FN25. As the Court stated in Coolidge v.

New Hampshire :

“Both sides to the controversy appear to

recognize a distinction between searches

and seizures that take place on a man's

property-his home or office-and those car-

ried out elsewhere. It is accepted, at least

as a matter of principle, that a search or

seizure carried out on a suspect's premises

without a warrant is per se unreasonable,

unless the police can show that it falls

within one of a carefully defined set of

exceptions based on the presence of ‘exi-

gent circumstances.’

“It is clear, then, that the notion that the

warrantless entry of a man's house in or-

der to arrest him on probable cause is per

se legitimate is in fundamental conflict

with the basic principle of Fourth

Amendment law that searches and sei-

zures inside a man's house without war-

rant are per se unreasonable in the ab-

sence of some one of a number of well de-

fined ‘exigent circumstances.’ ” 403 U.S.,

at 474-475, 477-478, 91 S.Ct., at 2042,

2044.

Although Mr. Justice Harlan joined this

portion of the Court's opinion, he ex-

pressly disclaimed any position on the is-

sue now before us. Id., at 492, 91 S.Ct., at

2051 (concurring opinion). “It is one thing to seize without a warrant property

resting in an open area or seizable by levy without an

intrusion into privacy, and it is quite another thing to

effect a warrantless seizure of property, even that

owned by a corporation, situated on private premises

to which access is not otherwise available for the

seizing officer.” [10] As the late Judge Leventhal recognized, this

distinction has equal force when the seizure of a per-

son is involved. Writing on the constitutional issue

now before us for the United States Court of Appeals

for the District of Columbia Circuit sitting en banc,

Dorman v. United States, 140 U.S.App.D.C. 313, 435

F.2d 385 (1970), Judge Leventhal first noted the set-

tled rule that warrantless arrests in public places are

valid. He immediately recognized, however, that “[a] greater burden is placed ... on officials who enter

a home or dwelling without consent. Freedom from

intrusion into the home or dwelling is the archetype

of the privacy protection secured by the Fourth

Amendment.” Id., at 317, 435 F.2d, at 389. (Footnote

omitted.) **1381 [11] His analysis of this question then fo-

cused on the long-settled premise that, absent exigent

circumstances, a warrantless*588 entry to search for

weapons or contraband is unconstitutional even when

a felony has been committed and there is probable

cause to believe that incriminating evidence will be

found within.FN26

He reasoned that the constitutional

protection afforded to the individual's interest in the

privacy of his own home is equally applicable to a

warrantless entry for the purpose of arresting a resi-

dent of the house; for it is inherent in such an entry

that a search for the suspect may be required before

he can be apprehended.FN27

Judge Leventhal con-

cluded that an entry to arrest and an entry to search

for and to seize property implicate the same interest

in preserving the privacy and the sanctity of the

home, and justify the same level of constitutional

protection.

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FN26. As Mr. Justice Harlan wrote for the

Court:

“It is settled doctrine that probable cause

for belief that certain articles subject to

seizure are in a dwelling cannot of itself

justify a search without a warrant. Agnello

v. United States, 269 U.S. 20, 33, 46 S.Ct.

4, 6, 70 L.Ed. 145; Taylor v. United

States, 286 U.S. 1, 6, 52 S.Ct. 466, 467,

76 L.Ed. 951. The decisions of this Court

have time and again underscored the es-

sential purpose of the Fourth Amendment

to shield the citizen from unwarranted in-

trusions into his privacy. See, e. g., John-

son v. United States, 333 U.S. 10, 14, 68

S.Ct. 367, 369, 92 L.Ed. 436; McDonald

v. United States, 335 U.S. 451, 455, 69

S.Ct. 191, 193, 93 L.Ed. 153; cf.

Giordenello v. United States, [357 U.S.

480, 78 S.Ct. 1245, 2 L.Ed.2d 1503]. This

purpose is realized by Rule 41 of the Fed-

eral Rules of Criminal Procedure, which

implements the Fourth Amendment by re-

quiring that an impartial magistrate de-

termine from an affidavit showing prob-

able cause whether information possessed

by law-enforcement officers justifies the

issuance of a search warrant. Were federal

officers free to search without a warrant

merely upon probable cause to believe

that certain articles were within a home,

the provisions of the Fourth Amendment

would become empty phrases, and the

protection it affords largely nullified.”

Jones v. United States, 357 U.S., at 497-

498, 78 S.Ct., at 1256 (footnote omitted).

FN27. See generally Rotenberg & Tanzer,

Searching for the Person to be Seized, 35

Ohio St.L.J. 56 (1974). This reasoning has been followed in other Cir-

cuits.FN28

Thus, the Second Circuit recently summa-

rized its position:

FN28. See n. 4, supra.

“To be arrested in the home involves not only the

invasion*589 attendant to all arrests but also an inva-

sion of the sanctity of the home. This is simply too

substantial an invasion to allow without a warrant, at

least in the absence of exigent circumstances, even

when it is accomplished under statutory authority and

when probable cause is clearly present.” United

States v. Reed, 572 F.2d 412, 423 (1978), cert. de-

nied, sub nom. Goldsmith v. United States, 439 U.S.

913, 99 S.Ct. 283, 58 L.Ed.2d 259. We find this reasoning to be persuasive and in accord

with this Court's Fourth Amendment decisions. [12] The majority of the New York Court of Appeals,

however, suggested that there is a substantial differ-

ence in the relative intrusiveness of an entry to search

for property and an entry to search for a person. See

n. 13, supra. It is true that the area that may legally

be searched is broader when executing a search war-

rant than when executing an arrest warrant in the

home. See Chimel v. California, 395 U.S. 752, 89

S.Ct. 2034, 23 L.Ed.2d 685. This difference may be

more theoretical than real, however, because the po-

lice may need to check the entire premises for safety

reasons, and sometimes they ignore the restrictions

on searches incident to arrest.FN29

FN29. See, e. g., the facts in Payton's case,

n. 5, supra. But the critical point is that any differences in the

intrusiveness of entries to search and entries to arrest

are merely ones of degree rather than kind. The two

intrusions share this fundamental characteristic: the

breach of the entrance to an individual's home. The

Fourth Amendment protects the individual's privacy

in a variety of settings. In none is the zone of privacy

more clearly defined than when bounded by the un-

ambiguous physical dimensions of an individ-

ual's**1382 home-a zone that finds its roots in clear

and specific constitutional terms: “The right of the

people to be secure in their . . . houses . . . shall not

be violated.” That language unequivocally establishes

the proposition that “[a]t the very *590 core [of the

Fourth Amendment] stands the right of a man to re-

treat into his own home and there be free from unrea-

sonable governmental intrusion.” Silverman v. United

States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5

100 S.Ct. 1371 Page 15

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L.Ed.2d 734. In terms that apply equally to seizures

of property and to seizures of persons, the Fourth

Amendment has drawn a firm line at the entrance to

the house. Absent exigent circumstances, that thresh-

old may not reasonably be crossed without a warrant.

III Without contending that United States v. Watson, 423

U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, decided the

question presented by these appeals, New York ar-

gues that the reasons that support the Watson holding

require a similar result here. In Watson the Court

relied on (a) the well-settled common-law rule that a

warrantless arrest in a public place is valid if the ar-

resting officer had probable cause to believe the sus-

pect is a felon; FN30

(b) the clear consensus among the

States adhering to that well-settled common-law rule; FN31

and (c) the expression of the judgment of Con-

gress that such an arrest is “reasonable.” FN32

We con-

sider*591 each of these reasons as it applies to a war-

rantless entry into a home for the purpose of making

a routine felony arrest.

FN30. “The cases construing the Fourth

Amendment thus reflect the ancient com-

mon-law rule that a peace officer was per-

mitted to arrest without a warrant for a mis-

demeanor or felony committed in his pres-

ence as well as for a felony not committed in

his presence if there was reasonable ground

for making the arrest. 10 Halsbury's Laws of

England 344-345 (3d ed. 1955); 4 W. Black-

stone, Commentaries * 292; 1 J. Stephen, A

History of the Criminal Law of England 193

(1883); 2 M. Hale, Pleas of the Crown * 72-

74; Wilgus, Arrests Without a Warrant, 22

Mich.L.Rev. 541, 547-550, 686-688 (1924);

Samuel v. Payne 1 Doug. 359, 99 Eng.Rep.

230 (K.B.1780); Beckwith v. Philby, 6 Barn.

& Cress. 635, 108 Eng.Rep. 585

(K.B.1827).” 423 U.S., at 418-419, 96 S.Ct.,

at 825.

FN31. “The balance struck by the common

law in generally authorizing felony arrests

on probable cause, but without a warrant,

has survived substantially intact. It appears

in almost all of the States in the form of ex-

press statutory authorization.” Id., at 421-

422, 96 S.Ct., at 826.

FN32. “This is the rule Congress has long

directed its principal law enforcement offi-

cers to follow. Congress has plainly decided

against conditioning warrantless arrest

power on proof of exigent circumstances.”

Id., at 423, 96 S.Ct., at 827.

The Court added in a footnote:

“Until 1951, 18 U.S.C. § 3052 condi-

tioned the warrantless arrest powers of the

agents of the Federal Bureau of Investiga-

tion on there being reasonable grounds to

believe that the person would escape be-

fore a warrant could be obtained. The Act

of Jan. 10, 1951, c. 1221, § 1, 64 Stat.

1239, eliminated this condition.” Id., at

423, n. 13, 96 S.Ct., at 827.

A [13][14][15] An examination of the common-law

understanding of an officer's authority to arrest sheds

light on the obviously relevant, if not entirely disposi-

tive,FN33

consideration**1383 of what the Framers of

the Amendment might have thought to be reasonable.

Initially, it should be noted that the common-law

rules of arrest developed in legal contexts that sub-

stantially differ from the cases now before us. In

these cases, which involve application of the exclu-

sionary rule, the issue is whether certain*592 evi-

dence is admissible at trial.FN34

See Weeks v. United

States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. At

common law, the question whether an arrest was

authorized typically arose in civil damages actions

for trespass or false arrest, in which a constable's

authority to make the arrest was a defense. See, e. g.,

Leach v. Money, 19 How.St.Tr. 1001, 97 Eng.Rep.

1075 (K.B.1765). Additionally, if an officer was

killed while attempting to effect an arrest, the ques-

tion whether the person resisting the arrest was guilty

of murder or manslaughter turned on whether the

officer was acting within the bounds of his authority.

See M. Foster, Crown Law 308, 312 (1762). See also

West v. Cabell, 153 U.S. 78, 85, 14 S.Ct. 752, 753, 38

L.Ed. 643.

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FN33. There are important differences be-

tween the common-law rules relating to

searches and seizures and those that have

evolved through the process of interpreting

the Fourth Amendment in light of contem-

porary norms and conditions. For example,

whereas the kinds of property subject to sei-

zure under warrants had been limited to con-

traband and the fruits or instrumentalities of

crime, see Gouled v. United States, 255 U.S.

298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647,

the category of property that may be seized,

consistent with the Fourth Amendment, has

been expanded to include mere evidence.

Warden v. Hayden, 387 U.S. 294, 87 S.Ct.

1642, 18 L.Ed.2d 782. Also, the prohibitions

of the Amendment have been extended to

protect against invasion by electronic eaves-

dropping of an individual's privacy in a

phone booth not owned by him, Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576, even though the earlier law

had focused on the physical invasion of the

individual's person or property interests in

the course of a seizure of tangible objects.

See Olmstead v. United States, 277 U.S.

438, 466, 48 S.Ct. 564, 72 L.Ed.2d 944.

Thus, this Court has not simply frozen into

constitutional law those law enforcement

practices that existed at the time of the

Fourth Amendment's passage.

FN34. The issue is not whether a defendant

must stand trial, because he must do so even

if the arrest is illegal. See United States v.

Crews, 445 U.S. 463, at 474, 100 S.Ct.

1244, at 1251, 63 L.Ed.2d 537. A study of the common law on the question whether

a constable had the authority to make warrantless

arrests in the home on mere suspicion of a felony-as

distinguished from an officer's right to arrest for a

crime committed in his presence-reveals a surprising

lack of judicial decisions and a deep divergence

among scholars. The most cited evidence of the common-law rule

consists of an equivocal dictum in a case actually

involving the sheriff's authority to enter a home to

effect service of civil process. In Semayne's Case, 5

Co.Rep. 91a, 91b, 77 Eng.Rep. 194, 195-196

(K.B.1603), the Court stated: “In all cases when the King is party, the Sheriff (if

the doors be not open) may break the party's house,

either to arrest him, or to do other execution of the

K.'s process, if otherwise he cannot enter. But before

he breaks it, he ought to signify the cause of his com-

ing, and to make request to open doors; and that ap-

pears well by the stat. of Westm. 1. c. 17. (which it

but an affirmance of the common law) as hereafter

appears, for the law without a default in the owner

abhors the destruction*593 or breaking of any house

(which is for the habitation and safety of man) by

which great damage and inconvenience might ensue

to the party, when no default is in him; for perhaps he

did not know of the process, of which, if he had no-

tice, it is to be presumed that he would obey it, and

that appears by the book in 18 E. 2. Execut. 252.

where it is said, that the K.'s officer who comes to do

execution, &c. may open the doors which are shut,

and break them, if he cannot have the keys; which

proves, that he ought first to demand them, 7 E.

3.16.” (Footnotes omitted.) This passage has been read by some as describing an

entry without a warrant. The context strongly implies,

however, that the court was describing the extent of

authority in executing the King's writ. This reading is

confirmed by the phrase “either to arrest him, or to do

other execution of the K.'s process” and by the fur-

ther point that notice was necessary because the

owner may “not know of the process.” In any event,

the passage surely cannot be said unambiguously to

endorse warrantless entries. The common-law commentators disagreed sharply on

the subject.FN35

Three distinct views were expressed.

Lord Coke, *594 widely **1384 recognized by the

American colonists “as the greatest authority of his

time on the laws of England,” FN36

clearly viewed a

warrantless entry for the purpose of arrest to be ille-

gal.FN37

*595 Burn, Foster, and Hawkins agreed, FN38

as did East and Russell, though the latter two quali-

fied their opinions by stating that if an entry to arrest

was made without a warrant, the officer was perhaps

immune from liability for the trespass if the suspect

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(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


was actually guilty.FN39

Blackstone, Chitty, and Ste-

phen took the opposite view, that entry to arrest

without a warrant was legal,FN40

though Stephen re-

lied on **1385 Blackstone who, along with Chitty, in

turn relied exclusively on Hale. But Hale's view was

not quite so unequivocally expressed.FN41

*596 Fur-

ther, Hale appears to rely solely on a statement in an

early Yearbook, quoted in Burdett v. Abbot, 14 East

1, 155, 104 Eng.Rep. 501, 560 (K.B.1811): FN42

FN35. Those modern commentators who

have carefully studied the early works agree

with that assessment. See ALI, A Model

Prop. Off. Draft Code of Pre-Arraignment

Procedure 308 (1975) (hereinafter ALI

Code); Blakey, The Rule of Announcement

and Unlawful Entry: Miller v. United States

and Ker v. California, 112 U.Pa.L.Rev. 499,

502 (1964); Comment, Forcible Entry to Ef-

fect a Warrantless Arrest-The Eroding Pro-

tection of the Castle, 82 Dick.L.Rev. 167,

168, n. 5 (1977); Note, The Constitutionality

of Warrantless Home Arrests, 78

Colum.L.Rev. 1550, 1553 (1978) (“the ma-

jor common-law commentators appear to be

equally divided on the requirement of a war-

rant for a home arrest”) (hereinafter Colum-

bia Note); Recent Development, Warrantless

Arrests by Police Survive a Constitutional

Challenge-United States v. Watson, 14

Am.Crim.L.Rev. 193, 210-211 (1976). Ac-

cord, Miller v. United States, 357 U.S. 301,

307-308, 78 S.Ct. 1190, 1194-1195, 2

L.Ed.2d 1332; Accarino v. United States, 85

U.S.App.D.C. 394, 402, 179 F.2d 456, 464

(1949).

FN36. “Foremost among the titles to be

found in private libraries of the time were

the works of Coke, the great expounder of

Magna Carta, and similar books on English

liberties. The inventory of the library of Ar-

thur Spicer, who died in Richmond County,

Virginia, in 1699, included Coke's Institutes,

another work on Magna Carta, and a ‘Table

to Cooks Reports.’ The library of Colonel

Daniel McCarty, a wealthy planter and

member of the Virginia House of Burgesses

who died in Westmoreland County in 1724,

included Coke's Reports, an abridgment of

Coke's Reports, Coke on Littleton, and

‘Rights of the Comons of England.’ Captain

Charles Colston, who died in Richmond

County, Virginia, in 1724, and Captain

Christopher Cocke, who died in Princess

Anne County, Virginia, in 1716, each had

copies of Coke's Institutes. That these librar-

ies were typical is suggested by a study of

the contents of approximately one hundred

private libraries in colonial Virginia, which

revealed that the most common law title

found in these libraries was Coke's Reports.

They were typical of other colonies, too.

Another study, of the inventories of forty-

seven libraries throughout the colonies be-

tween 1652 and 1791, found that of all the

books on either law or politics in these li-

braries the most common was Coke's Insti-

tutes (found in 27 of the 47 libraries). The

second most common title was a poor sec-

ond; it was Grotius' War and Peace, found

in 16 of the libraries (even Locke's Two

Treatises on Government appeared in only

13 of the libraries).

“The popularity of Coke in the colonies is

of no small significance. Coke himself

had been at the eye of the storm in the

clashes between King and Parliament in

the early seventeenth century which did so

much to shape the English Constitution.

He rose to high office at the instance of

the Crown-he was Speaker of the House

of Commons and Attorney General under

Queen Elizabeth, and James I made Coke

first his Chief Justice of Common Pleas

and then his Chief Justice of King's

Bench. During this time Coke gained an

unchallenged position as the greatest

authority of his time on the laws of Eng-

land, frequently burying an opponent with

learned citations from early Year Books.

Having been a champion of the Crown's

interests, Coke (in a change of role that

recalls the metamorphosis of Thomas à

Becket) became instead the defender of

the common law.” A. Howard, The Road

From Runnymede 118-119 (1968). (Foot-

100 S.Ct. 1371 Page 18

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notes omitted.)

FN37. “[N]either the Constable, nor any

other can break open any house for the ap-

prehension of the party suspected or charged

with the felony. . . . ” 4 E. Coke, Institutes *

177. Coke also was of the opinion that only

a King's indictment could justify the break-

ing of doors to effect an arrest founded on

suspicion, and that not even a warrant issued

by a justice of the peace was sufficient

authority. Ibid. He was apparently alone in

that view, however.

FN38. 1 R. Burn, The Justice of the Peace

and Parish Officer 87 (6th ed. 1758) (“where

one lies under probable suspicion only, and

is not indicted, it seems the better opinion at

this day (Mr. Hawkins says) that no one can

justify the breaking open doors in order to

apprehend him . . . ”); M. Foster, Crown

Law 321 (1762); 2 W. Hawkins, Pleas of the

Crown 139 (6th ed. 1787): “But where one

lies under a probable suspicion only, and is

not indicted, it seems the better (d ) opinion

at this day, That no one can justify the

breaking open doors in order to apprehend

him.” The contrary opinion of Hale, see n.

41, infra, is acknowledged among the

authorities cited in the footnote (d ).

FN39. 1 E. East, Pleas of the Crown 322

(1806) (“[Y]et a bare suspicion of guilt

against the party will not warrant a proceed-

ing to this extremity [the breaking of doors],

unless the officer be armed with a magis-

trate's warrant grounded on such suspicion.

It will at least be at the peril of proving that

the party so taken on suspicion was

guilty.”); 1 W. Russell, A Treatise on

Crimes and Misdemeanors 745 (1819)

(similar rule).

FN40. 4 W. Blackstone, Commentaries *

292; 1 J. Chitty, A Practical Treatise on the

Criminal Law 23 (1816); 4 H. Stephen, New

Commentaries on the Laws of England 359

(1845).

FN41. 1 M. Hale, Pleas of the Crown 583

(1736); 2 id., at 90-95. At page 92 of the lat-

ter volume, Hale writes that in the case

where the constable suspects a person of a

felony, “if the supposed offender fly and

take house, and the door will not be opened

upon demand of the constable and notifica-

tion of his business, the constable may break

the door, tho he have no warrant. 13 E. 4. 9.

a.” Although it would appear that Hale

might have meant to limit warrantless home

arrests to cases of hot pursuit, the quoted

passage has not typically been read that way.

FN42. Apparently, the Yearbook in which

the statement appears has never been fully

translated into English. “ ‘that for felony, or suspicion of felony, a man may

break open the house to take the felon; for it is for the

commonweal to take them.’ ” Considering the diversity of views just described,

however, it is clear that the statement was never

deemed authoritative. Indeed, in Burdett, the state-

ment was described as an “extrajudicial opinion.”

Ibid.FN43

FN43. That assessment is consistent with the

description by this Court of the holding of

that Yearbook case in Miller v. United

States, 357 U.S., at 307, 78 S.Ct., at 1194:

“As early as the 13th Yearbook of Edward

IV (1461-1483), at folio 9, there is a re-

corded holding that it was unlawful for the

sheriff to break the doors of a man's house

to arrest him in a civil suit in debt or tres-

pass, for the arrest was then only for the

private interest of a party.” It is obvious that the common-law rule on warrantless

home arrests was not as clear as the rule on arrests in

public places. Indeed, particularly considering the

prominence of Lord Coke, the weight of authority as

it appeared to the Framers was to the effect that a

warrant was required, or at the minimum that there

were substantial risks in proceeding without one. The

common-law sources display a sensitivity to privacy

interests that could not have been lost on the Framers.

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The zealous and frequent repetition of the adage that

a “man's house is his castle,” made it abundantly

clear that both in England FN44

*597 and in the Colo-

nies “the freedom of one's house” was one of the

most vital elements of English liberty.FN45

FN44. Thus, in Semayne's Case, 5 Co.Rep.

91a, 91b, 77 Eng.Rep. 194, 195 (K.B.1603),

the court stated: “That the house of every

one is to him as his castle and fortress, as

well for his defence against injury and vio-

lence, as for his repose; and although the life

of man is a thing precious and favoured in

law; so that although a man kills another in

his defence, or kills one per infortun', with-

out any intent, yet it is felony, and in such

case he shall forfeit his goods and chattels,

for the great regard which the law has to a

man's life; but if thieves come to a man's

house to rob him, or murder, and the owner

of his servants kill any of the thieves in de-

fence of himself and his house, it is not fel-

ony, and he shall lose nothing, and therewith

agree 3 E. 3. Coron. 303, & 305. & 26 Ass.

pl. 23. So it is held in 21 H. 7. 39. every one

may assemble his friends and neighbours to

defend his house against violence: but he

cannot assemble them to go with him to the

market, or elsewhere for his safeguard

against violence: and the reason of all this is,

because domus sua cuique est tutissimum

refugium.” (Footnotes omitted.)

In the report of that case it is noted that al-

though the sheriff may break open the

door of a barn without warning to effect

service of a writ, a demand and refusal

must precede entry into a dwelling house.

Id., at 91b, n. (c), 77 Eng.Rep., at 196, n.

(c): “And this privilege is confined to a

man's dwelling-house, or out-house ad-

joining thereto, for the sheriff on a fieri

facias may break open the door of a barn

standing at a distance from the dwelling-

house, without requesting the owner to

open the door, in the same manner as he

may enter a close. Penton v. Brown, 2

Keb. 698, S.C. 1 Sid. 186.”

FN45. “Now one of the most essential

branches of English liberty is the freedom of

one's house. A man's house is his castle; and

while he is quiet, he is as well guarded as a

prince in his castle. This writ, if it should be

declared legal, would totally annihilate this

privilege.” 2 Legal Papers of John Adams

142 (L. Wroth & H. Zobel eds. 1965).

We have long recognized the relevance of

the common law's special regard for the

home to the development of Fourth

Amendment jurisprudence. See, e. g.,

Weeks v. United States, 232 U.S. 383,

390, 34 S.Ct. 341, 343, 58 L.Ed. 652:

“Judge Cooley, in his Constitutional Limi-

tations, pp. 425, 426, in treating of this

feature of our Constitution, said: ‘The

maxim that “every man's house is his cas-

tle,” is made a part of our constitutional

law in the clauses prohibiting unreason-

able searches and seizures, and has always

been looked upon as of high value to the

citizen.’ ‘Accordingly,’ says Lieber in his

work on Civil Liberty and Self-

Government, 62, in speaking of the Eng-

lish law in this respect, ‘no man's house

can be forcibly opened, or he or his goods

be carried away after it has thus been

forced, except in cases of felony, and then

the sheriff must be furnished with a war-

rant, and take great care lest he commit a

trespass. This principle is jealously in-

sisted upon.”

Although the quote from Lieber concern-

ing warrantless arrests in the home is on

point for today's cases, it was dictum in

Weeks. For that case involved a warran-

tless arrest in a public place, and a warran-

tless search of Week's home in his ab-

sence. **1386 Thus, our study of the relevant common law

does not provide the same guidance that was present

in Watson. Whereas *598 the rule concerning the

validity of an arrest in a public place was supported

by cases directly in point and by the unanimous

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views of the commentators, we have found no direct

authority supporting forcible entries into a home to

make a routine arrest and the weight of the scholarly

opinion is somewhat to the contrary. Indeed, the ab-

sence of any 17th- or 18th-century English cases di-

rectly in point, together with the unequivocal en-

dorsement of the tenet that “a man's house is his cas-

tle,” strongly suggests that the prevailing practice

was not to make such arrests except in hot pursuit or

when authorized by a warrant. Cf. Agnello v. United

States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145.

In all events, the issue is not one that can be said to

have been definitively settled by the common law at

the time the Fourth Amendment was adopted.

B A majority of the States that have taken a position on

the question permit warrantless entry into the home

to arrest even in the absence of exigent circum-

stances. At this time, 24 States permit such warran-

tless entries; FN46

15 States clearly *599 prohibit

them, though 3 States do so on federal constitutional

grounds alone; FN47

and 11 States have apparently

taken no position on the question.FN48

FN46. Twenty-three States authorize such

entries by statute. See Ala.Code § 15-10-4

(1975); Alaska Stat.Ann. § 12.25.100

(1972); Ark.Stat.Ann. § 43-414 (1977);

Fla.Stat. § 901.19 (1979); Haw.Rev.Stat. §

803-11 (1977); Idaho Code § 19-611 (1979);

Ill.Rev.Stat., ch. 38, § 107-5(d) (1971);

La.Code Crim.Proc.Ann., Art. 224 (West

1967); Mich.Comp.Laws § 764.21 (1970);

Minn.Stat. § 629.34 (1978); Miss.Code Ann.

§ 99-3-11 (1973); Mo.Rev.Stat. § 544.200

(1978); Neb.Rev.Stat. § 29-411 (1975);

Nev.Rev.Stat. § 171.138 (1977);

N.Y.Crim.Proc.Law §§ 140.15(4),

120.80(4), (5) (McKinney 1971);

N.C.Gen.Stat. § 15A-401(e) (1978);

N.D.Cent.Code § 29-06-14 (1974); Ohio

Rev.Code Ann. § 2935.12 (1975);

Okla.Stat., Tit. 22, § 197 (1971);

S.D.Comp.Laws Ann. § 23A-3-5 (1979);

Tenn.Code Ann. § 40-807 (1975); Utah

Code Ann. § 77-13-12 (Repl.1978);

Wash.Rev.Code § 10.31.040 (1976). One

State has authorized warrantless arrest en-

tries by judicial decision. See Shanks v.

Commonwealth, 463 S.W.2d 312, 315

(Ky.App.1971).

A number of courts in these States, though

not directly deciding the issue, have rec-

ognized that the constitutionality of such

entries is open to question. See People v.

Wolgemuth, 69 Ill.2d 154, 13 Ill.Dec. 40,

370 N.E.2d 1067 (1977), cert. denied, 436

U.S. 908, 98 S.Ct. 2243, 56 L.Ed.2d 408;

State v. Ranker, 343 So.2d 189 (La.1977)

(citing both State and Federal Constitu-

tions); State v. Lasley, 306 Minn. 224, 236

N.W.2d 604 (1975), cert. denied, 429 U.S.

1077, 97 S.Ct. 820, 50 L.Ed.2d 796; State

v. Novak, 428 S.W.2d 585 (Mo.1968);

State v. Page, 277 N.W.2d 112

(N.D.1979); State v. Max, 263 N.W.2d

685 (S.D.1978).

FN47. Four States prohibit warrantless ar-

rests in the home by statute, see Ga.Code §§

27-205, 27-207 (1978) (also prohibits war-

rantless arrests outside the home absent exi-

gency); Ind.Code §§ 35-1-19-4, 35-1-19-6

(1976); Mont.Code Ann. § 46-6-401 (1979)

(same as Georgia); S.C.Code § 23-15-60

(1976); 1 by state common law, see United

States v. Hall, 468 F.Supp. 123, 131, n. 16

(E.D.Tex.1979); Moore v. State, 149

Tex.Crim. 229, 235-236, 193 S.W.2d 204,

207 (1946); and 10 on constitutional

grounds, see n. 3, supra.

FN48. Connecticut, Delaware, Maine, Mary-

land, New Hampshire, New Jersey, New

Mexico, Rhode Island, Vermont, Virginia

and Wyoming. The courts of three of the

above-listed States have recognized that the

constitutionality of warrantless home arrest

is subject to question. See State v. Anony-

mous, 34 Conn.Supp. 531, 375 A.2d 417

(Sup.Ct., App.Sess.1977); Nilson v. State,

272 Md. 179, 321 A.2d 301 (1974);

Palmigiano v. Mullen, 119 R.I. 363, 377

A.2d 242 (1977).

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**1387 But these current figures reflect a significant

decline during the last decade in the number of States

permitting warrantless entries for arrest. Recent dicta

in this Court raising questions about the practice, see

n. 1, supra, and Federal Courts of Appeals' decisions

on point, see n. 4, supra, have led state courts to fo-

cus on the issue. Virtually all of the state courts that

have had to confront the constitutional issue directly

have held warrantless entries into the home to arrest

to be invalid in the absence of exigent circumstances.

See nn. 2, 3, supra. Three state courts have relied on

Fourth Amendment *600 grounds alone, while seven

have squarely placed their decisions on both federal

and state constitutional grounds.FN49

A number of

other state courts, though not having had to confront

the issue directly, have recognized the serious nature

of the constitutional question. FN50

Apparently, only

the Supreme Court of Florida and the New York

Court of Appeals in this case have expressly upheld

warrantless entries to arrest in the face of a constitu-

tional challenge.FN51

FN49. See cases cited in n. 3, supra.

FN50. See cases cited in nn. 46, 48, supra.

FN51. See n. 2, supra.

[16][17] A longstanding, widespread practice is not

immune from constitutional scrutiny. But neither is it

to be lightly brushed aside. This is particularly so

when the constitutional standard is as amorphous as

the word “reasonable,” and when custom and con-

temporary norms necessarily play such a large role in

the constitutional analysis. In this case, although the

weight of state-law authority is clear, there is by no

means the kind of virtual unanimity on this question

that was present in United States v. Watson, with

regard to warrantless arrests in public places. See 423

U.S., at 422-423, 96 S.Ct., at 827-828. Only 24 of the

50 States currently sanction warrantless entries into

the home to arrest, see nn. 46-48, supra, and there is

an obvious declining trend. Further, the strength of

the trend is greater than the numbers alone indicate.

Seven state courts have recently held that warrantless

home arrests violate their respective State Constitu-

tions. See n. 3, supra. That is significant because by

invoking a state constitutional provision, a state court

immunizes its decision from review by this Court.

FN52 This heightened degree of immutability under-

scores the depth of the principle underlying the result.

FN52. See, e. g., Herb v. Pitcairn, 324 U.S.

117, 125-126, 65 S.Ct. 459, 462-463, 89

L.Ed. 789. See generally Brennan, State

Constitutions and the Protection of Individ-

ual Rights, 90 Harv.L.Rev. 489 (1977).

*601 C No congressional determination that warrantless en-

tries into the home are “reasonable” has been called

to our attention. None of the federal statutes cited in

the Watson opinion reflects any such legislative

judgment. FN53

Thus, that support for the Watson

holding finds no counterpart in this case.

FN53. The statute referred to in n. 32, supra,

provides:

“The Director, Associate Director, Assis-

tant to the Director, Assistant Directors,

inspectors, and agents of the Federal Bu-

reau of Investigation of the Department of

Justice may carry firearms, serve warrants

and subpoenas issued under the authority

of the United States and make arrests

without warrant for any offense against

the United States committed in their pres-

ence, or for any felony cognizable under

the laws of the United States if they have

reasonable grounds to believe that the per-

son to be arrested has committed or is

committing such felony.” 18 U.S.C. §

3052.

It says nothing either way about executing

warrantless arrests in the home. See also

ALI Code at 308; Columbia Note 1554-

1555, n. 26. Mr. Justice POWELL, concurring in United States v.

Watson, supra, at 429, 96 S.Ct., at 830, stated: “But logic sometimes must defer to history and expe-

rience. The Court's opinion emphasizes the historical

sanction accorded warrantless felony arrests [in pub-

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lic places].” In this case, however, neither history nor this Nation's

experience requires us to disregard**1388 the over-

riding respect for the sanctity of the home that has

been embedded in our traditions since the origins of

the Republic. FN54

FN54. There can be no doubt that Pitt's ad-

dress in the House of Commons in March

1763 echoed and re-echoed throughout the

Colonies:

“ ‘The poorest man may in his cottage bid

defiance to all the forces of the Crown. It

may be frail; its roof may shake; the wind

may blow through it; the storm may enter;

the rain may enter; but the King of Eng-

land cannot enter-all his force dares not

cross the threshold of the ruined tene-

ment! ’ ” Miller v. United States, 357

U.S., at 307, 78 S.Ct., at 1195.

*602 IV The parties have argued at some length about the

practical consequences of a warrant requirement as a

precondition to a felony arrest in the home. FN55

In the

absence of any evidence that effective law enforce-

ment has suffered in those States that already have

such a requirement, see nn. 3, 47, supra, we are in-

clined to view such arguments with skepticism. More

fundamentally, however, such arguments of policy

must give way to a constitutional command that we

consider to be unequivocal.

FN55. The State of New York argues that

the warrant requirement will pressure police

to seek warrants and make arrests too hur-

riedly, thus increasing the likelihood of ar-

resting innocent people; that it will divert

scarce resources thereby interfering with the

police's ability to do thorough investiga-

tions; that it will penalize the police for de-

liberate planning; and that it will lead to

more injuries. Appellants counter that care-

ful planning is possible and that the police

need not rush to get a warrant, because if an

exigency arises necessitating immediate ar-

rest in the course of an orderly investigation,

arrest without a warrant is permissible; that

the warrant procedure will decrease the like-

lihood that an innocent person will be ar-

rested; that the inconvenience of obtaining a

warrant and the potential for diversion of re-

sources is exaggerated by the State; and that

there is no basis for the assertion that the

time required to obtain a warrant would cre-

ate peril. [18] Finally, we note the State's suggestion that only

a search warrant based on probable cause to believe

the suspect is at home at a given time can adequately

protect the privacy interests at stake, and since such a

warrant requirement is manifestly impractical, there

need be no warrant of any kind. We find this ingen-

ious argument unpersuasive. It is true that an arrest

warrant requirement may afford less protection than a

search warrant requirement, but it will suffice to in-

terpose the magistrate's determination of probable

cause between the zealous officer and the citizen. If

there is sufficient evidence of a citizen's participation

in a felony to persuade a judicial officer that his ar-

rest is justified, it is constitutionally reason able*603

to require him to open his doors to the officers of the

law. Thus, for Fourth Amendment purposes, an arrest

warrant founded on probable cause implicitly carries

with it the limited authority to enter a dwelling in

which the suspect lives when there is reason to be-

lieve the suspect is within. Because no arrest warrant was obtained in either of

these cases, the judgments must be reversed and the

cases remanded to the New York Court of Appeals

for further proceedings not inconsistent with this

opinion. It is so ordered. Mr. Justice BLACKMUN, concurring. I joined the Court's opinion in United States v. Wat-

son, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598

(1976), upholding, on probable cause, the warrantless

arrest in a public place. I, of course, am still of the

view that the decision in Watson is correct. The

Court's balancing of the competing governmental and

individual interests properly occasioned that result.

Where, however, the warrantless arrest is in the sus-

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pect's home, that same balancing requires that, absent

exigent circumstances, the result be the other way.

The suspect's interest in the sanctity of his home then

outweighs the governmental interests. I therefore join the Court's opinion, firm in the con-

viction that the result in Watson and the result here,

although opposite, are fully justified by history and

by the Fourth Amendment. **1389 Mr. Justice WHITE, with whom THE CHIEF

JUSTICE and Mr. Justice REHNQUIST join, dis-

senting. The Court today holds that absent exigent circum-

stances officers may never enter a home during the

daytime to arrest for a dangerous felony unless they

have first obtained a warrant. This hard-and-fast rule,

founded on erroneous assumptions concerning the

intrusiveness of home arrest entries, *604 finds little

or no support in the common law or in the text and

history of the Fourth Amendment. I respectfully dis-

sent.

I As the Court notes, ante, at 1382-1383, the common

law of searches and seizures, as evolved in England,

as transported to the Colonies, and as developed

among the States, is highly relevant to the present

scope of the Fourth Amendment. United States v.

Watson, 423 U.S. 411, 418-422, 96 S.Ct. 820, 825-

827, 46 L.Ed.2d 598 (1976); id., at 425, 429, 96

S.Ct., at 828-830 (POWELL, J., concurring);

Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct.

854, 861-863, 43 L.Ed.2d 54 (1975); Carroll v.

United States, 267 U.S. 132, 149-153, 45 S.Ct. 280,

283-285, 69 L.Ed. 543 (1925); Bad Elk v. United

States, 177 U.S. 529, 534-535, 20 S.Ct. 729, 731, 44

L.Ed. 874 (1900); Boyd v. United States, 116 U.S.

616, 622-630, 6 S.Ct. 524, 527-532, 29 L.Ed. 746

(1886); Kurtz v. Moffitt, 115 U.S. 487, 498-499, 6

S.Ct. 148, 151-152, 29 L.Ed. 459 (1885). Today's

decision virtually ignores these centuries of common-

law development, and distorts the historical meaning

of the Fourth Amendment, by proclaiming for the

first time a rigid warrant requirement for all nonexi-

gent home arrest entries.

A

As early as the 15th century the common law had

limited the Crown's power to invade a private dwell-

ing in order to arrest. A Year Book case of 1455 held

that in civil cases the sheriff could not break doors to

arrest for debt or trespass, for the arrest was then only

in the private interests of a party. Y.B. 13 Edw. IV,

9a. To the same effect is Semayne's Case, 5 Co.Rep.

91a, 77 Eng.Rep. 194 (K.B.1603). The holdings of

these cases were condensed in the maxim that “every

man's house is his castle.” H. Broom, Legal Maxims

* 321-329. However, this limitation on the Crown's power ap-

plied only to private civil actions. In cases directly

involving the Crown, the rule was that “[t]he king's

keys unlock all doors.” Wilgus, Arrest Without a

Warrant, 22 Mich.L.Rev. 798, 800 (1924). The Year

Book case cited above stated a different rule for

criminal cases: for a felony, or suspicion of felony,

one may break into the dwelling house to take the

felon, for *605 it is the common weal and to the in-

terest of the King to take him. Likewise, Semayne's

Case stated in dictum: “In all cases when the King is party, the Sheriff (if

the doors be not open) may break the party's house,

either to arrest him, or to do other execution of the

K[ing]'s process, if otherwise he cannot enter.” 5

Co.Rep., at 91b, 77 Eng.Rep., at 195. Although these cases established the Crown's power

to enter a dwelling in criminal cases, they did not

directly address the question of whether a constable

could break doors to arrest without authorization by a

warrant. At common law, the constable's office was

two fold. As conservator of the peace, he possessed,

virtute officii, a “great original and inherent authority

with regard to arrests,” 4 W. Blackstone, Commen-

taries * 292 (hereinafter Blackstone), and could

“without any other warrant but from [himself] arrest

felons, and those that [were] probably suspected of

felonies,” 2 M. Hale, Pleas of the Crown 85 (1736)

(hereinafter Hale); see United States v. Watson, su-

pra, 423 U.S. at 418-419, 96 S.Ct. 825. Second, as a

subordinate public official, the constable performed

ministerial tasks under the authorization and direction

of superior officers. See 1 R. Burn, The Justice of the

Peace and Parish Officer 295 (6th ed. 1758) (herein-

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after Burn); 2 W. Hawkins, Pleas of **1390 the

Crown 130-132 (6th ed. 1787) (hereinafter Hawkins).

It was in this capacity that the constable executed

warrants issued by justices of the peace. The warrant

authorized the constable to take actions beyond his

inherent powers.FN1

It also ensured that he actually

carried out his instructions, by giving him clear no-

tice of his duty, for the breach of which he could be

punished, 4 Blackstone * 291; 1 Burn 295; 2 Hale 88,

and by relieving him from civil liability even if prob-

able cause to *606 arrest were lacking, 4 Blackstone

* 291; 1 Burn 295-296; M. Dalton, The Country Jus-

tice 579 (1727 ed.) (hereinafter Dalton); 2 Hawkins

132-133. For this reason, warrants were sometimes

issued even when the act commanded was within the

constable's inherent authority. Dalton 576.

FN1. For example, a constable could arrest

for breaches of the peace committed outside

his presence only under authority of a war-

rant. Bad Elk v. United States, 177 U.S. 529,

534-535, 20 S.Ct. 729, 731, 44 L.Ed. 874

(1900); 1 Burn 294; 2 Hale 90; 2 Hawkins

130. As the Court notes, commentators have differed as to

the scope of the constable's inherent authority, when

not acting under a warrant, to break doors in order to

arrest. Probably the majority of commentators would

permit arrest entries on probable suspicion even if the

person arrested were not in fact guilty. 4 Blackstone

* 292; 1 Burn 87-88; FN2

1 J. Chitty, Criminal Law 23

(1816) (hereinafter Chitty); Dalton 426; 1 Hale 583;

2 id., at 90-94. These authors, in short, would have

permitted the type of home arrest entries that oc-

curred in the present cases. The inclusion of Black-

stone in this list is particularly significant in light of

his profound impact on the minds of the colonists at

the time of the framing of the Constitution and the

ratification of the Bill of Rights.

FN2. The Court cites Burn for the proposi-

tion that home arrests on mere suspicion are

invalid. Ante, at 1384, n. 38. In fact, Burn

appears to be of the opposite view. Burn

contrasts the case of arrests by private citi-

zens, which cannot be justified unless the

person arrested was actually guilty of fel-

ony, with that of arrests by constables:

“But a constable in such case may justify,

and the reason of the difference is this:

because that in the former case it is but a

thing permitted to private persons to arrest

for suspicion, and they are not punishable

if they omit it, and therefore they cannot

break open doors; but in case of a consta-

ble, he is punishable if he omit it upon

complaint.” 1 Burn 87-88 (emphasis in

original).

Burn apparently refers to a constable's

duty to act without a warrant on complaint

of a citizen. A second school of thought, on which the Court re-

lies, held that the constable could not break doors on

mere “bare suspicion.” M. Foster, Crown Law 321

(1762); 2 Hawkins 139; 1 E. East, Pleas of the Crown

321-322 (1806); 1 W. Russell, Treatise on Crimes

and Misdemeanors 745 (1819) (hereinafter Russell).

Cf. 4 E. Coke, Institutes * 177. Although this doc-

trine*607 imposed somewhat greater limitations on

the constable's inherent power, it does not support the

Court's hard-and-fast rule against warrantless nonexi-

gent home entries upon probable cause. East and

Russell state explicitly what Foster and Hawkins im-

ply: although mere “bare suspicion” will not justify

breaking doors, the constable's action would be justi-

fiable if the person arrested were in fact guilty of a

felony. These authorities can be read as imposing a

somewhat more stringent requirement of probable

cause for arrests in the home than for arrests else-

where. But they would not bar nonexigent, warran-

tless home arrests in all circumstances, as the Court

does today. And Coke is flatly contrary to the Court's

rule requiring a warrant, since he believed that even a

warrant would not justify an arrest entry until the

suspect had been indicted. Finally, it bears noting that the doctrine against home

entries on bare suspicion developed in a period in

which the validity of any arrest on bare suspicion-

even one occurring outside the home-was open to

question. Not until Lord Mansfield's decision in

Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 230

(K.B.1780), was it definitively established that the

constable could arrest on suspicion even if it turned

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out that no **1391 felony had been committed. To

the extent that the commentators relied on by the

Court reasoned from any general rule against warran-

tless arrests based on bare suspicion, the rationale for

their position did not survive Samuel v. Payne.

B The history of the Fourth Amendment does not sup-

port the rule announced today. At the time that

Amendment was adopted the constable possessed

broad inherent powers to arrest. The limitations on

those powers derived, not from a warrant “require-

ment,” but from the generally ministerial nature of

the constable's office at common law. Far from re-

stricting the constable's arrest power, the institution

of the *608 warrant was used to expand that authority

by giving the constable delegated powers of a supe-

rior officer such as a justice of the peace. Hence at

the time of the Bill of Rights, the warrant functioned

as a powerful tool of law enforcement rather than as a

protection for the rights of criminal suspects. In fact, it was the abusive use of the warrant power,

rather than any excessive zeal in the discharge of

peace officers' inherent authority, that precipitated the

Fourth Amendment. That Amendment grew out of

colonial opposition to the infamous general warrants

known as writs of assistance, which empowered cus-

toms officers to search at will, and to break open re-

ceptacles or packages, wherever they suspected un-

customed goods to be. United States v. Chadwick,

433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481-2482, 53

L.Ed.2d 538 (1977); N. Lasson, The History and De-

velopment of the Fourth Amendment to the United

States Constitution 51-78 (1937) (hereinafter Las-

son). The writs did not specify where searches could

occur and they remained effective throughout the

sovereign's lifetime. Id., at 54. In effect, the writs

placed complete discretion in the hands of executing

officials. Customs searches of this type were beyond

the inherent power of common-law officials and were

the subject of court suits when performed by colonial

customs agents not acting pursuant to a writ. Id. at

55. The common law was the colonists' ally in their

struggle against writs of assistance. Hale and Black-

stone had condemned general warrants, 1 Hale 580; 4

Blackstone * 291, and fresh in the colonists' minds

were decisions granting recovery to parties arrested

or searched under general warrants on suspicion of

seditious libel. Entick v. Carrington, 19 How.St.Tr.

1029, 95 Eng.Rep. 807 (K.B.1765); Huckle v. Money,

2 Wils. 205, 95 Eng.Rep. 768 (K.B.1763); Wilkes v.

Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489

(K.B.1763). When James Otis, Jr., delivered his

courtroom oration against writs of assistance in 1761,

he looked to the common law in asserting that the

writs, if not construed specially, were void as a *609

form of general warrant. 2 Legal Papers of John Ad-

ams 139-144 (L. Wroth & H. Zobel eds. 1965).FN3

FN3. The Court cites Pitt's March 1763 ora-

tion in the House of Commons as indicating

an “overriding respect for the sanctity of the

home.” Ante, at 1388, and n. 54. But this

speech was in opposition to a proposed ex-

cise tax on cider. 15 Parliamentary History

of England 1307 (1813). Nothing in it re-

motely suggests that Pitt objected to the

constable's traditional power of warrantless

entry into dwellings to arrest for felony. Given the colonists' high regard for the common law,

it is indeed unlikely that the Framers of the Fourth

Amendment intended to derogate from the consta-

ble's inherent common-law authority. Such an argu-

ment was rejected in the important early case of

Rohan v. Sawin, 59 Mass. 281, 284-285 (1851): “It has been sometimes contended, that an arrest of

this character, without a warrant, was a violation of

the great fundamental principles of our national and

state constitutions, forbidding unreasonable searches

and arrests, except by warrant founded upon a com-

plaint made under oath. Those provisions doubtless

had another and different purpose, being in restraint

of general warrants to make **1392 searches, and

requiring warrants to issue only upon a complaint

made under oath. They do not conflict with the

authority of constables or other peace-officers . . . to

arrest without warrant those who have committed

felonies. The public safety, and the due apprehension

of criminals, charged with heinous offences, imperi-

ously require that such arrests should be made with-

out warrant by officers of the law.” FN4

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FN4. See also North v. People, 139 Ill. 81,

105, 28 N.E. 966, 972 (1891) (Warrant

Clause “does not abridge the right to arrest

without warrant, in cases where such arrest

could be lawfully made at common law be-

fore the adoption of the present constitu-

tion”); Wakely v. Hart, 6 Binn. 316, 319

(Pa.1814) (rules permitting arrest without a

warrant are “principles of the common law,

essential to the welfare of society, and not

intended to be altered or impaired by the

constitution. The whole section indeed was

nothing more than an affirmance of the

common law . . . ”). *610 That the Framers were concerned about war-

rants, and not about the constable's inherent power to

arrest, is also evident from the text and legislative

history of the Fourth Amendment. That provision

first reaffirms the basic principle of common law,

that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated . .

. .” The Amendment does not here purport to limit or

restrict the peace officer's inherent power to arrest or

search, but rather assumes an existing right against

actions in excess of that inherent power and ensures

that it remain inviolable. As I have noted, it was not

generally considered “unreasonable” at common law

for officers to break doors in making warrantless fel-

ony arrests. The Amendment's second clause is di-

rected at the actions of officers taken in their ministe-

rial capacity pursuant to writs of assistance and other

warrants. In contrast to the first Clause, the second

Clause does purport to alter colonial practice: “and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly


or things to be seized.” That the Fourth Amendment was directed towards

safeguarding the rights at common law, and restrict-

ing the warrant practice which gave officers vast new

powers beyond their inherent authority, is evident

from the legislative history of that provision. As

originally drafted by James Madison, it was directed

only at warrants; so deeply ingrained was the basic

common-law premise that it was not even expressed:

“The rights of the people to be secured in their per-

sons[,] their houses, their papers, and their other

property, from all unreasonable searches and sei-

zures, shall not be violated by warrants issued with-

out probable cause, supported by oath or affirmation,

or not particularly describing the places to be

searched, or the persons or things to be seized.” 1

Annals of Cong. 452 (1789). *611 The Committee of Eleven reported the provi-

sion as follows: “The right of the people to be secured in their per-

sons, houses, papers, and effects, shall not be violated

by warrants issuing without probable cause, sup-

ported by oath or affirmation, and not particularly


or things to be seized.” Id., at 783. The present language was adopted virtually at the last

moment by the Committee of Three, which had been

appointed only to arrange the Amendments rather

than to make substantive changes in them. Lasson

101. The Amendment passed the House; but “the

House seems never to have consciously agreed to the

Amendment in its present form.” Ibid. In any event,

because the sanctity of the common-law protections

was assumed from the start, it is evident that the

change made by the Committee of Three was a cau-

tionary measure without substantive content. In sum, the background, text, and legislative history

of the Fourth Amendment demonstrate that the pur-

pose was to restrict **1393 the abuses that had de-

veloped with respect to warrants; the Amendment

preserved common-law rules of arrest. Because it

was not considered generally unreasonable at com-

mon law for officers to break doors to effect a war-

rantless felony arrest, I do not believe that the Fourth

Amendment was intended to outlaw the types of po-

lice conduct at issue in the present cases.

C Probably because warrantless arrest entries were so

firmly accepted at common law, there is apparently

no recorded constitutional challenge to such entries in

the 19th-century cases. Common-law authorities on

both sides of the Atlantic, however, continued to en-

dorse the validity of such arrests. E. g., 1 J. Bishop,

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Commentaries on the Law of Criminal Procedure §§

195-199 (2d ed. 1872); 1 Chitty 23; 1 J. Colby, A

Practical Treatise upon the Criminal Law and Prac-

tice of the State *612 of New York 73-74 (1868); F.

Heard, A Practical Treatise on the Authority and Du-

ties of Trial Justices, District, Police, and Municipal

Courts, in Criminal Cases 135, 148 (1879); 1 Russell

745. Like their predecessors, these authorities con-

flicted as to whether the officer would be liable in

damages if it were shown that the person arrested was

not guilty of a felony. But all agreed that warrantless

home entries would be permissible in at least some

circumstances. None endorsed the rule of today's

decision that a warrant is always required, absent

exigent circumstances, to effect a home arrest. Apparently the first official pronouncement on the

validity of warrantless home arrests came with the

adoption of state codes of criminal procedure in the

latter 19th and early 20th centuries. The great major-

ity of these codes accepted and endorsed the inherent

authority of peace officers to enter dwellings in order

to arrest felons. By 1931, 24 of 29 state codes author-

ized such warrantless arrest entries.FN5

By 1975, 31 of

37 state codes authorized warrantless home felony

arrests.FN6

The American Law Institute included such

authority in its model legislation in 1931 and again in

1975.FN7

FN5. American Law Institute, Code of

Criminal Procedure 254-255 (Off.Draft

1931) (hereinafter Code).

FN6. American Law Institute, A Model

Code of Pre-Arraignment Procedure App.

XI (Prop.Off.Draft 1975) (hereinafter Model

Code).

FN7. Code §§ 21, 28; Model Code §

120.6(1). The first direct judicial holding on the subject of war-

rantless home arrests seems to have been

Commonwealth v. Phelps, 209 Mass. 396, 95 N.E.

868 (1911). The holding in this case that such entries

were constitutional became the settled rule in the

States for much of the rest of the century. See Wil-

gus, Arrest Without a Warrant, 22 Mich.L.Rev. 798,

803 (1924). Opinions of this Court also assumed that

such arrests were constitutional.FN8

FN8. See Johnson v. United States, 333 U.S.

10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436

(1948) (stating in dictum that officers could

have entered hotel room without a warrant

in order to make an arrest “for a crime

committed in the presence of the arresting

officer or for a felony of which he had rea-

sonable cause to believe defendant guilty”)

(footnote omitted); Ker v. California, 374

U.S. 23, 38, 83 S.Ct. 1623, 1632, 10

L.Ed.2d 726 (1963) (plurality opinion);

Sabbath v. United States, 391 U.S. 585, 588,

88 S.Ct. 1755, 1757, 20 L.Ed.2d 828 (1968). *613 This Court apparently first questioned the rea-

sonableness of warrantless nonexigent entries to ar-

rest in Jones v. United States, 357 U.S. 493, 499-500,

78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), noting

in dictum that such entries would pose a “grave con-

stitutional question” if carried out at night.FN9

In

Coolidge v. New Hampshire, 403 U.S. 443, 480, 91

S.Ct. 2022, 2045, 29 L.Ed.2d 564 (1971), the Court

stated, again in dictum:

FN9. One Court of Appeals had previously

held such entries unconstitutional. Accarino

v. United States, 85 U.S.App.D.C. 394, 179

F.2d 456 (1949). “[I]f [it] is correct that it has generally been assumed

that the Fourth Amendment is not violated by the

warrantless entry of a man's house for purposes of

**1394 arrest, it might be wise to re-examine the

assumption. Such a re-examination ‘would confront

us with a grave constitutional question, namely,

whether the forcible nighttime entry into a dwelling

to arrest a person reasonably believed within, upon

probable cause that he has committed a felony, under

circumstances where no reason appears why an arrest

warrant could not have been sought, is consistent

with the Fourth Amendment.’ Jones v. United States,

357 U.S., at 499-500, 78 S.Ct., at 1257.” Although Coolidge and Jones both referred to the

special problem of warrantless entries during the

nighttime,FN10

it is not surprising that state and fed-

eral courts have tended to read those dicta as suggest-

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ing a broader infirmity applying to daytime entries

also, and that the majority of recent decisions have

been against the constitutionality of all types of war-

rantless, nonexigent home arrest entries. As the Court

concedes,however, *614 even despite Coolidge and

Jones it remains the case that

FN10. As I discuss infra, there may well be

greater constitutional problems with night-

time entries. “[a] majority of the States that have taken a position

on the question permit warrantless entry into the

home to arrest even in the absence of exigent circum-

stances. At this time, 24 States permit such warran-

tless entries; 15 States clearly prohibited them,

though 3 States do so on federal constitutional

grounds alone; and 11 States have apparently taken

no position on the question.” Ante, at 1386 (footnotes

omitted). This consensus, in the face of seemingly contrary

dicta from this Court, is entitled to more deference

than the Court today provides. Cf. United States v.

Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598

(1976).

D In the present cases, as in Watson, the applicable fed-

eral statutes are relevant to the reasonableness of the

type of arrest in question. Under 18 U.S.C. § 3052,

specified federal agents may “make arrests without

warrants for any offense against the United States

committed in their presence, or for any felony cogni-

zable under the laws of the United States, if they have

reasonable grounds to believe that the person to be

arrested has committed or is committing such fel-

ony.” On its face this provision authorizes federal

agents to make warrantless arrests anywhere, includ-

ing the home. Particularly in light of the accepted

rule at common law and among the States permitting

warrantless home arrests, the absence of any explicit

exception for the home from § 3052 is persuasive

evidence that Congress intended to authorize warran-

tless arrests there as well as elsewhere. Further, Congress has not been unaware of the spe-

cial problems involved in police entries into the

home. In 18 U.S.C. § 3109, it provided that

“[t]he officer may break open any outer or inner door

or window of a house, or any part of a house, or any-

thing *615 therein, to execute a search warrant, if,

after notice of its authority and purpose, he is refused

admittance . . . .” See Miller v. United States, 357 U.S. 301, 78 S.Ct.

1190, 2 L.Ed.2d 1332 (1958). In explicitly providing

authority to enter when executing a search warrant,

Congress surely did not intend to derogate from the

officers' power to effect an arrest entry either with or

without a warrant. Rather, Congress apparently as-

sumed that this power was so firmly established ei-

ther at common law or by statute that no explicit

grant of arrest authority was required in § 3109. In

short, although the Court purports to find no guidance

in the relevant federal statutes, I believe that fairly

read they authorize the type of police conduct at issue

in these cases.

II

A Today's decision rests, in large measure, on the prem-

ise that warrantless arrest entries constitute a particu-

larly severe invasion of personal privacy. I do not

dispute **1395 that the home is generally a very pri-

vate area or that the common law displayed a special

“reverence . . . for the individual's right of privacy in

his house.” Miller v. United States, supra, at 313, 78

S.Ct., at 1198. However, the Fourth Amendment is

concerned with protecting people, not places, and no

talismanic significance is given to the fact that an

arrest occurs in the home rather than elsewhere. Cf.

Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62

L.Ed.2d 238 (1979); Katz v. United States, 389 U.S.

347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967);

Boyd v. United States, 116 U.S., at 630, 6 S.Ct., at

532. It is necessary in each case to assess realistically

the actual extent of invasion of constitutionally pro-

tected privacy. Further, as Mr. Justice POWELL ob-

served in United States v. Watson, supra, at 428, 96

S.Ct., at 830 (concurring opinion), all arrests involve

serious intrusions into an individual's privacy and

dignity. Yet we settled in Watson that the intrusive-

ness of a public arrest is not enough to mandate the

obtaining of a warrant. The inquiry in the present

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case, therefore, is whether the incremental*616 intru-

siveness that results from an arrest's being made in

the dwelling is enough to support an inflexible consti-

tutional rule requiring warrants for such arrests

whenever exigent circumstances are not present. Today's decision ignores the carefully crafted restric-

tions on the common-law power of arrest entry and

thereby overestimates the dangers inherent in that

practice. At common law, absent exigent circum-

stances, entries to arrest could be made only for fel-

ony. Even in cases of felony, the officers were re-

quired to announce their presence, demand admis-

sion, and be refused entry before they were entitled to

break doors.FN11

Further, it seems generally accepted

that entries could be made only during daylight

hours. FN12

And, in my view, the officer entering to

arrest must have reasonable grounds to believe, not

only that the arrestee has committed a crime, but also

that the person suspected is present in the house at

the time of the entry.FN13

FN11. Miller v. United States, 357 U.S. 301,

308, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332

(1958); Semayne's Case, 5 Co.Rep. 91a, 77

Eng.Rep. 194 (K.B.1603); Dalton 427; 2

Hale 90; 2 Hawkins 138.

FN12. Model Code § 120.6(3). Cf. Jones v.

United States, 357 U.S. 493, 499-500, 78

S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958);

Coolidge v. New Hampshire, 403 U.S. 443,

480, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564

(1971).

FN13. I do not necessarily disagree with the

Court's discussion of the quantum of prob-

able cause necessary to make a valid home

arrest. The Court indicates that only an ar-

rest warrant, and not a search warrant, is re-

quired. Ante, at 1388. To obtain the warrant,

therefore, the officers need only show prob-

able cause that a crime has been committed

and that the suspect committed it. However,

under today's decision, the officers appar-

ently need an extra increment of probable

cause when executing the arrest warrant,

namely, grounds to believe that the suspect

is within the dwelling. Ibid.

These four restrictions on home arrests-felony, knock

and announce, daytime, and stringent probable cause-

constitute powerful and complementary protections

for the privacy interests associated with the home.

The felony requirement guards against abusive or

arbitrary enforcement and ensures that invasions of

the home occur only in case of the most *617 serious

crimes. The knock-and-announce and daytime re-

quirements protect individuals against the fear, hu-

miliation, and embarrassment of being aroused from

their beds in states of partial or complete undress.

And these requirements allow the arrestee to surren-

der at his front door, thereby maintaining his dignity

and preventing the officers from entering other rooms

of the dwelling. The stringent probable-cause re-

quirement would help ensure against the possibility

that the police would enter when the suspect was not

home, and, in searching for him, frighten members of

the family or ransack parts of the house, seizing items

in plain view. In short, these requirements, taken to-

gether, permit an individual suspected of a serious

crime to surrender at the front door of his dwelling

and thereby avoid most of the **1396 humiliation

and indignity that the Court seems to believe neces-

sarily accompany a house arrest entry. Such a front-

door arrest, in my view, is no more intrusive on per-

sonal privacy than the public warrantless arrests

which we found to pass constitutional muster in Wat-

son.FN14

FN14. If the suspect flees or hides, of

course, the intrusiveness of the entry will be

somewhat greater; but the policeman's hands

should not be tied merely because of the

possibility that the suspect will fail to coop-

erate with legitimate actions by law en-

forcement personnel. All of these limitations on warrantless arrest entries

are satisfied on the facts of the present cases. The

arrests here were for serious felonies-murder and

armed robbery-and both occurred during daylight

hours. The authorizing statutes required that the po-

lice announce their business and demand entry; nei-

ther Payton nor Riddick makes any contention that

these statutory requirements were not fulfilled. And it

is not argued that the police had no probable cause to

believe that both Payton and Riddick were in their

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dwellings at the time of the entries. Today's decision,

therefore, sweeps away any possibility that warran-

tless home entries might be permitted in some limited

situations other than those in which *618 exigent

circumstances are present. The Court substitutes, in

one sweeping decision, a rigid constitutional rule in

place of the common-law approach, evolved over

hundreds of years, which achieved a flexible accom-

modation between the demands of personal privacy

and the legitimate needs of law enforcement. A rule permitting warrantless arrest entries would not

pose a danger that officers would use their entry

power as a pretext to justify an otherwise invalid war-

rantless search. A search pursuant to a warrantless

arrest entry will rarely, if ever, be as complete as one

under authority of a search warrant. If the suspect

surrenders at the door, the officers may not enter

other rooms. Of course, the suspect may flee or hide,

or may not be at home, but the officers cannot antici-

pate the first two of these possibilities and the last is

unlikely given the requirement of probable cause to

believe that the suspect is at home. Even when offi-

cers are justified in searching other rooms, they may

seize only items within the arrestee's position or im-

mediate control or items in plain view discovered

during the course of a search reasonably directed at

discovering a hiding suspect. Hence a warrantless

home entry is likely to uncover far less evidence than

a search conducted under authority of a search war-

rant. Furthermore, an arrest entry will inevitably tip

off the suspects and likely result in destruction or

removal of evidence not uncovered during the arrest.

I therefore cannot believe that the police would take

the risk of losing valuable evidence through a pretex-

tual arrest entry rather than applying to a magistrate

for a search warrant.

B While exaggerating the invasion of personal privacy

involved in home arrests, the Court fails to account

for the danger that its rule will “severely hamper ef-

fective law enforcement,” United States v. Watson,

423 U.S., at 431, 96 S.Ct., at 831 (POWELL, J., con-

curring); Gerstein v. Pugh, 420 U.S., at 113, 95 S.Ct.,

at 862. The policeman *619 on his beat must now

make subtle discriminations that perplex even judges

in their chambers. As Mr. Justice POWELL noted,

concurring in United States v. Watson, supra, police

will sometimes delay making an arrest, even after

probable cause is established, in order to be sure that

they have enough evidence to convict. Then, if they

suddenly have to arrest, they run the risk that the sub-

sequent exigency will not excuse their prior failure to

obtain a warrant. This problem cannot effectively be

cured by obtaining a warrant as soon as probable

cause is established because of the chance that the

warrant will go stale before the arrest is made. Further, police officers will often face the difficult

task of deciding whether the circumstances are suffi-

ciently exigent to justify their entry to arrest without

a warrant. **1397 This is a decision that must be

made quickly in the most trying of circumstances. If

the officers mistakenly decide that the circumstances

are exigent, the arrest will be invalid and any evi-

dence seized incident to the arrest or in plain view

will be excluded at trial. On the other hand, if the

officers mistakenly determine that exigent circum-

stances are lacking, they may refrain from making the

arrest, thus creating the possibility that a dangerous

criminal will escape into the community. The police

could reduce the likelihood of escape by staking out

all possible exits until the circumstances become

clearly exigent or a warrant is obtained. But the costs

of such a stakeout seem excessive in an era of rising

crime and scarce police resources. The uncertainty inherent in the exigent-circumstances

determination burdens the judicial system as well. In

the case of searches, exigent circumstances are suffi-

ciently unusual that this Court has determined that

the benefits of a warrant outweigh the burdens im-

posed, including the burdens on the judicial system.

In contrast, arrests recurringly involve exigent cir-

cumstances, and this Court has heretofore held that a

warrant can be dispensed with without undue sacri-

fice in Fourth Amendment values. The situation

should be no dif ferent*620 with respect to arrests in

the home. Under today's decision, whenever the po-

lice have made a warrantless home arrest there will

be the possibility of “endless litigation with respect to

the existence of exigent circumstances, whether it

was practicable to get a warrant, whether the suspect

was about to flee, and the like,” United States v. Wat-

son, supra, at 423-424, 96 S.Ct., at 828.

100 S.Ct. 1371 Page 31

445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(Cite as: 445 U.S. 573, 100 S.Ct. 1371)


Our cases establish that the ultimate test under the

Fourth Amendment is one of “reasonableness.”

Marshall v. Barlow's, Inc., 436 U.S. 307, 315-316, 98

S.Ct. 1816, 1822, 56 L.Ed.2d 305 (1978); Camara v.

Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727,

1736, 18 L.Ed.2d 930 (1967). I cannot join the Court

in declaring unreasonable a practice which has been

thought entirely reasonable by so many for so long. It

would be far preferable to adopt a clear and simple

rule: after knocking and announcing their presence,

police may enter the home to make a daytime arrest

without a warrant when there is probable cause to

believe that the person to be arrested committed a

felony and is present in the house. This rule would

best comport with the common-law background, with

the traditional practice in the States, and with the

history and policies of the Fourth Amendment. Ac-

cordingly, I respectfully dissent. Mr. Justice REHNQUIST, dissenting. The Court today refers to both Payton and Riddick as

involving “routine felony arrests.” I have no reason to

dispute the Court's characterization of these arrests,

but cannot refrain from commenting on the social

implications of the result reached by the Court.

Payton was arrested for the murder of the manager of

a gas station; Riddick was arrested for two armed

robberies. If these are indeed “routine felony arrests,”

which culminated in convictions after trial upheld by

the state courts on appeal, surely something is amiss

in the process of the administration of criminal jus-

tice whereby these convictions are now set aside by

this Court under the exclusionary rule which we have

imposed upon the States under *621 the Fourth and

Fourteenth Amendments to the United States Consti-

tution. I fully concur in and join the dissenting opinion of

Mr. Justice WHITE. There is significant historical

evidence that we have over the years misread the

history of the Fourth Amendment in connection with

searches, elevating the warrant requirement over the

necessity for probable cause in a way which the

Framers of that Amendment did not intend. See T.

Taylor, Two Studies in Constitutional Interpretation

38-50 (1969). But one may accept all of that as stare

decisis, and still feel deeply troubled by the transposi-

tion of these same errors into the area of actual ar-

rests of felons within their houses with respect to

**1398 whom there is probable cause to suspect guilt

of the offense in question. U.S.N.Y.,1980. Payton v. New York 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 END OF DOCUMENT

81 S.Ct. 679 Page 1

365 U.S. 505, 81 S.Ct. 679, 97 A.L.R.2d 1277, 5 L.Ed.2d 734

(Cite as: 365 U.S. 505, 81 S.Ct. 679)


Supreme Court of the United States

Julius SILVERMAN et al., Petitioners, v.

UNITED STATES. No. 66.

Argued Dec. 5, 1960.

Decided March 6, 1961. Defendants were found guilty of gambling offenses.

From a judgment of the United States District Court

for the District of Columbia, 166 F.Supp. 838, the

defendants appealed. The United States Court of Ap-

peals for the District of Columbia Circuit, 107

U.S.App.D.C. 144, 275 F.2d 173, affirmed and the

Supreme Court granted certiorari. The Supreme

Court, Mr. Justice Stewart, held that the actions of

police officers in attaching an electronic device, a so-

called ‘spike mike’ to heating duct of house used by

defendants, thereby turning duct, in effect, into a gi-

gantic microphone running throughout entire house,

constituted a violation of Fourth Amendment, and

conversations overheard by police officers were in-

admissible. Reversed.

West Headnotes [1] Federal Courts 170B 458 170B Federal Courts 170BVII Supreme Court 170BVII(B) Review of Decisions of Courts of

Appeals 170Bk455 Decisions Reviewable and

Grounds for Issuance 170Bk458 k. Criminal Cases. Most

Cited Cases (Formerly 106k383(1)) Supreme Court granted certiorari to consider conten-

tion that police officers' testimony as to what they

had heard through electronic instrument attached to

heating duct of house should not have been admitted

in evidence. [2] Telecommunications 372 1437 372 Telecommunications 372X Interception or Disclosure of Electronic

Communications; Electronic Surveillance 372X(A) In General 372k1435 Acts Constituting Interception or

Disclosure 372k1437 k. Telephone Communica-

tions. Most Cited Cases (Formerly 372k494.1, 372k494) Police officers' overhearing defendants' telephone

conversations by means of a “spike mike” attached to

heating duct of house, did not “intercept” conversa-

tions within statute prohibiting interception of tele-

phone communications. U.S.C.A.Const. Amends. 4,

5; Communications Act of 1934, § 605, 47 U.S.C.A.

§ 605. [3] Criminal Law 110 394.3 110 Criminal Law 110XVII Evidence 110XVII(I) Competency in General 110k394 Evidence Wrongfully Obtained 110k394.3 k. Wiretapping or Other

Interception. Most Cited Cases Searches and Seizures 349 54 349 Searches and Seizures 349I In General 349k53 Scope, Conduct, and Duration of

Warrantless Search 349k54 k. Mode of Entry; Warning and

Announcement. Most Cited Cases (Formerly 349k7(1)) Action of police officers in attaching electronic de-

vice, a so-called “spike mike” to heating duct of

house used by defendant, and, in effect, turning duct

into a gigantic microphone running throughout entire

house, violated the Fourth Amendment, and conver-

sations overheard by officers were inadmissible in

81 S.Ct. 679 Page 2

365 U.S. 505, 81 S.Ct. 679, 97 A.L.R.2d 1277, 5 L.Ed.2d 734

(Cite as: 365 U.S. 505, 81 S.Ct. 679)


prosecutions for gambling offenses. U.S.C.A.Const.

Amend. 4. [4] Searches and Seizures 349 23 349 Searches and Seizures 349I In General 349k23 k. Fourth Amendment and Reason-

ableness in General. Most Cited Cases (Formerly 349k7(1)) Inherent Fourth Amendment rights are not inevitably

measured in terms of ancient niceties of tort or real

property law. U.S.C.A.Const. Amend. 4. [5] Searches and Seizures 349 25.1 349 Searches and Seizures 349I In General 349k25 Persons, Places and Things Protected 349k25.1 k. In General. Most Cited Cases (Formerly 349k25, 349k7(1)) At very core of man's personal right stands the right

to retreat into his own home and there be free from

unreasonable governmental intrusion. U.S.C.A.Const.

Amend. 4. **679 Mr. *505 Edward Bennett Williams, Washing-

ton, D.C., for petitioners. Mr. John F. Davis, Washington, D.C., for respondent. **680 *506 Mr. Justice STEWART delivered the

opinion of the Court. [1] The petitioners were tried and found guilty in the

District Court for the District of Columbia upon three

counts of an indictment charging gambling offenses

under the District of Columbia Code. At the trial po-

lice officers were permitted to describe incriminating

conversations engaged in by the petitioners at their

alleged gambling establishment, conversations which

the officers had overheard by means of an electronic

listening device. The convictions were affirmed by

the Court of Appeals, 107 U.S.App.D.C. 144, 275

F.2d 173, and we granted certiorari to consider the

contention that the officers' testimony as to what they

had heard through the electronic instrument should

not have been admitted into evidence. 363 U.S. 801,

80 S.Ct. 1237, 4 L.Ed.2d 1145.

The record shows that in the spring of 1958 the Dis-

trict of Columbia police had reason to suspect that the

premises at 408 21st Street, N.W., in Washington,

were being used as the headquarters of a gambling

operation. They gained permission from the owner of

the vacant adjoining row house to use it as an obser-

vation post. From this vantage point for a period of at

least three consecutive days in April 1958, the offi-

cers employed a so-called ‘spike mike’ to listen to

what was going on within the four walls of the house

next door. The instrument in question was a microphone with a

spike about a foot long attached to, it together with an

amplifier, a power pack, and earphones. The officers

inserted the spike under a baseboard in a second-floor

room of the vacant house and into a crevice extend-

ing several inches into the party wall, until the spike

hit something solid ‘that acted as a very good sound-

ing board.’ The record clearly indicates that the spike

made contact with a heating duct serving the house

occupied *507 by the petitioners thus converting their

entire heating system into a conductor of sound.

Conversations taking place on both floors of the

house were audible to the officers through the ear-

phones, and their testimony regarding these conversa-

tions, admitted at the trial over timely objection,

played a substantial part in the petitioners' convic-

tions.FN1

FN1. Alleging that the conversations thus

overheard had been the basis for a search

warrant under which other incriminating

evidence was discovered at 408 21st Street,

N.W., the petitioners sought unsuccessfully

to suppress the evidence obtained upon exe-

cution of the warrant. It is the Government's

position that there were ample grounds to

support the search warrant, even without

what was overheard by means of the spike

mike. We deal here only with the admissibil-

ity at the trial of the officers' testimony as to

what they heard by means of the listening

device, leaving a determination of the war-

rant's validity to abide the event of a new

trial. Affirming the convictions, the Court of Appeals held

81 S.Ct. 679 Page 3

365 U.S. 505, 81 S.Ct. 679, 97 A.L.R.2d 1277, 5 L.Ed.2d 734

(Cite as: 365 U.S. 505, 81 S.Ct. 679)


that the trial court had not erred in admitting the offi-

cers' testimony. The court was of the view that the

officers' use of the spike mike had violated neither

the Communications Act of 1934, 47 U.S.C. s 605,

47 U.S.C.A. s 605, cf. Nardone v. United States, 302

U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, nor the peti-

tioners' rights under the Fourth Amendment, cf.

Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341,

58 L.Ed. 652. In reaching these conclusions the court relied primar-

ily upon our decisions in Goldman v. United States,

316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, and On

Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96

L.Ed. 1270. Judge Washington dissented, believing

that, even if the petitioners' Fourth Amendment rights

had not been abridged, the officers' conduct had

transgressed the standards of due process guaranteed

by the Fifth Amendment. Cf. Irvine v. People of State

of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed.

561. **681 [2] As to the inapplicability of s 605 of the

Communications Act of 1934, we agree with the

Court of Appeals. That section provides that ‘* * * no

person not being *508 authorized by the sender shall

intercept any communication and divulge or publish

the existence, contents, substance, purport, effect, or

meaning of such intercepted communication to any

person * * *.’ While it is true that much of what the

officers heard consisted of the petitioners' share of

telephone conversations, we cannot say that the offi-

cers intercepted these conversations within the mean-

ing of the statute. Similar contentions have been rejected here at least

twice before. In Irvine v. People of State of Califor-

nia, 347 U.S. 128, 131, 74 S.Ct. 381, 382, 98 L.Ed.

561 the Court said: ‘Here the apparatus of the officers

was not in any way connected with the telephone

facilities, there was no interference with the commu-

nications system, there was no interception of any

message. All that was heard through the microphone

was what an eavesdropper, hidden in the hall, the

bedroom, or the closet, might have heard. We do not

suppose it is illegal to testify to what another person

is heard to say merely because he is saying it into a

telephone.’ In Goldman v. United States, 316 U.S.

129, 134, 62 S.Ct. 993, 995, 86 L.Ed. 1322, it was

said that ‘The listening in the next room to the words

of (the petitioner) as he talked into the telephone re-

ceiver was no more the interception of a wire com-

munication, within the meaning of the Act, than

would have been the overhearing of the conversation

by one sitting in the same room.’ In presenting here the petitioners' Fourth Amendment

claim, counsel has painted with a broad brush. We

are asked to reconsider our decisions in Goldman v.

United States, supra, and On Lee v. United States,

supra. We are told that re-examination of the ration-

ale of those cases, and of Olmstead v. United States,

277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, from

which they stemmed, is now essential in the light of

recent and projected developments in the science of

electronics. We are favoured with a description of ‘a

device known as the parabolic microphone which can

pick up a conversation three hundred yards away.’

We are told of a *509 ‘still experimental technique

whereby a room is flooded with a certain type of

sonic wave,’ which, when perfected, ‘will make it

possible to overhear everything said in a room with-

out ever entering it or even going near it.’ We are

informed of an instrument ‘which can pick up a con-

versation through an open office window on the op-

posite side of a busy street.'FN2

FN2. See Hearings before the Subcommittee

on Constitutional Rights of the Committee

on the Judiciary, United States Senate, 85th

Cong., 2d Sess., on Wiretapping, Eaves-

dropping, and the Bill of Rights; Hearings

before Subcommittee No. 5 of the Commit-

tee on the Judiciary, House of Representa-

tives, 84th Cong., 1st Sess., on Wiretapping;

Dash, Schwartz and Knowlton, The Eaves-

droppers (Rutgers University Press, 1959),

pp. 346-358. [3] The facts of the present case, however, do not

require us to consider the large questions which have

been argued. We need not here contemplate the

Fourth Amendment implications of these and other

frightening paraphernalia which the vaunted marvels

of an electronic age may visit upon human society.

Nor do the circumstances here make necessary a re-

examination of the Court's previous decisions in this

area. For a fair reading of the record in this case

81 S.Ct. 679 Page 4

365 U.S. 505, 81 S.Ct. 679, 97 A.L.R.2d 1277, 5 L.Ed.2d 734

(Cite as: 365 U.S. 505, 81 S.Ct. 679)


shows that the eavesdropping was accomplished by

means of an unauthorized physical penetration into

the premises occupied by the petitioners. As Judge

Washington pointed out without contradiction in the

Court of Appeals: ‘Every inference, and what little

direct evidence there was, pointed to the fact that the

spike made contact with the heating duct, as the po-

lice admittedly hoped it would. **682 Once the spike

touched the heating duct, the duct became in effect a

giant microphone, running through the entire house

occupied by appellants.’ 107 U.S.App.D.C. at page

150, 275 F.2d at page 179. Eavesdropping accomplished by means of such a

physical intrusion is beyond the pale of even those

decisions in *510 which a closely divided Court has

held that eavesdropping accomplished by other elec-

tronic means did not amount to an invasion of Fourth

Amendment rights. In Goldman v. United States,

supra, the Court held that placing a detectaphone

against an office wall in order to listen to conversa-

tions taking place in the office next door did not vio-

late the Amendment. In On Lee v. United States, su-

pra, a federal agent, who was acquainted with the

petitioner, entered the petitioner's laundry and en-

gaged him in an incriminating conversation. The

agent had a microphone concealed upon his person.

Another agent, stationed outside with a radio receiv-

ing set, was tuned in on the conversation, and at the

petitioner's subsequent trial related what he had

heard. These circumstances were held not to consti-

tute a violation of the petitioner's Fourth Amendment

rights. But in both Goldman and On Lee the Court took

pains explicitly to point out that the eavesdropping

had not been accomplished by means of an unauthor-

ized physical encroachment within a constitutionally

protected area. In Goldman there had in fact been a

prior physical entry into the petitioner's office for the

purpose of installing a different listening apparatus,

which had turned out to be ineffective. The Court

emphasized that this earlier physical trespass had

been of no relevant assistance in the later use of the

detectaphone in the adjoining office. 316 U.S. at

pages 134-135, 62 S.Ct. at pages 995-996. And in On

Lee, as the Court said, ‘* * * no trespass was com-

mitted.’ The agent went into the petitioner's place of

business ‘with the consent, if not by the implied invi-

tation, of the petitioner.’ 343 U.S. at pages 751-752,

72 S.Ct. at page 971. The absence of a physical invasion of the petitioner's

premises was also a vital factor in the Court's deci-

sion in Olmstead v. United States, 277 U.S. 438, 48

S.Ct. 564, 72 L.Ed. 944. In holding that the wiretap-

ping there did not violate the Fourth Amendment, the

Court noted that ‘(t)he insertions*511 were made

without trespass upon any property of the defendants.

They were made in the basement of the large office

building. The taps from house lines were made in the

streets near the houses.’ 277 U.S. at page 457, 48

S.Ct. at page 565. ‘There was no entry of the houses

or offices of the defendants.’ 277 U.S. at page 464,

48 S.Ct. at page 568. Relying upon these circum-

stances, the Court reasoned that ‘(t)he intervening

wires are not part of (the defendant's) house or office

any more than are the highways along which they are

stretched.’ 277 U.S. at page 465, 48 S.Ct. at page

568. [4] Here, by contrast, the officers overheard the peti-

tioners' conversations only by usurping part of the

petitioners' house or office-a heating system which

was an integral part of the premises occupied by the

petitioners, a usurpation that was effected without

their knowledge and without their consent. In these

circumstances we need not pause to consider whether

or not there was a technical trespass under the local

property law relating to party walls.FN3

Inherent

Fourth Amendment rights are not inevitably measur-

able in terms of ancient niceties of tort or real prop-

erty law. See Jones v. United States, 362 U.S. 257,

266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697; On Lee v.

United States, supra, 343 U.S. at page 752, 72 S.Ct.

at page 971; Hester v. United States, 265 U.S. 57, 44

S.Ct. 445, 68 L.Ed. 898; United States v. Jeffers, 342

U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59;

**683McDonald v. United States, 335 U.S. 451, 454,

69 S.Ct. 191, 192, 93 L.Ed. 153.

FN3. See Fowler v. Koehler, 43 App.D.C.

349. [5] The Fourth Amendment, and the personal rights

which it secures, have a long history. At the very core

stands the right of a man to retreat into his own home

and there be free from unreasonable governmental

81 S.Ct. 679 Page 5

365 U.S. 505, 81 S.Ct. 679, 97 A.L.R.2d 1277, 5 L.Ed.2d 734

(Cite as: 365 U.S. 505, 81 S.Ct. 679)


intrusion. Entick v. Carrington, 19 Howell's State

Trials 1029, 1066; Boyd v. United States, 116 U.S.

616, 626-630, 6 S.Ct. 524, 530-532, 29 L.Ed. 746.FN4

This *512 Court has never held that a federal officer

may without warrant and without consent physically

entrench into a man's office or home, there secretly

observe or listen, and relate at the man's subsequent

criminal trial what was seen or heard.

FN4. William Pitt's eloquent description of

this right has been often quoted. The late

Judge Jerome Frank made the point in more

contemporary language: ‘A man can still

control a small part of his environment, his

house; he can retreat thence from outsiders,

secure in the knowledge that they cannot get

at him without disobeying the Constitution.

That is still a sizable hunk of liberty-worth

protecting from encroachment. A sane, de-

cent, civilized society must provide some

such oasis, some shelter from public scru-

tiny, some insulated enclosure, some en-

clave, some inviolate place which is a man's

castle.’ United States v. On Lee, 2 Cir., 193

F.2d 306, 315-316 (dissenting opinion). A distinction between the detectaphone employed in

Goldman and the spike mike utilized here seemed to

the Court of Appeals too fine a one to draw. The

court was ‘unwilling to believe that the respective

rights are to be measured in fractions of inches.’ But

decision here does not turn upon the technicality of a

trespass upon a party wall as a matter of local law. It

is based upon the reality of an actual intrusion into a

constitutionally protected area. What the Court said

long ago bears repeating now: ‘It may be that it is the

obnoxious thing in its mildest and least repulsive

form; but illegitimate and unconstitutional practices

get their first footing in that way, namely, by silent

approaches and slight deviations from legal modes of

procedure.’ Boyd v. United States, 116 U.S. 616,

635, 6 S.Ct. 524, 535, 29 L.Ed. 746. We find no oc-

casion to re-examine Goldman here, but we decline

to go beyond it, by even a fraction of an inch. Reversed. Mr. Justice DOUGLAS, concurring. My trouble with stare decisis in this field is that it

leads us to a matching of cases on irrelevant facts. An

electronic device on the outside wall of a house is a

permissible invasion of privacy according to

Goldman v. United States, 316 U.S. 129, 62 S.Ct.

993, 86 L.Ed. 1322, while an electronic device that

penetrates the wall, as here, is not. Yet the invasion

*513 of privacy is as great in one case as in the other.

The concept of ‘an unauthorized physical penetration

into the premises,’ on which the present decision

rests seems to me to be beside the point. Was not the

wrong in both cases done when the intimacies of the

home were tapped, recorded, or revealed? The depth

of the penetration of the electronic device-even the

degree of its remoteness from the inside of the house-

is not the measure of the injury. There is in each such

case a search that should be made, if at all, only on a

warrant issued by a magistrate. I stated my views in

On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967,

96 L.Ed. 1270, and adhere to them. Our concern

should not be with the trivialities of the local law of

trespass, as the opinion of the Court indicates. But

neither should the command of the Fourth Amend-

ment be limited by nice distinctions turning on the

kind of electronic equipment employed. Rather our

sole concern should be with whether the privacy of

the home was invaded. Since it was invaded here, and

since no search warrant was obtained as required by

the Fourth Amendment and Rule 41 of the Federal

Rules of Criminal Procedure, 18 U.S.C.A., I agree

with the Court that the judgment of conviction must

be set aside. **684 Mr. Justice CLARK and Mr. Justice

WHITTAKER, concurring. In view of the determination by the majority that the

unauthorized physical penetration into petitioners'

premises constituted sufficient trespass to remove

this case from the coverage of earlier decisions, we

feel obliged to join in the Court's opinion. U.S. 1961. Silverman v. U.S. 365 U.S. 505, 81 S.Ct. 679, 97 A.L.R.2d 1277, 5

L.Ed.2d 734 END OF DOCUMENT

Supreme Court of the United StatesJohn W. TERRY, Petitioner,

v.STATE OF OHIO.

No. 67.

Argued Dec. 12, 1967.Decided June 10, 1968.

Prosecution for carrying concealed weapon. TheCourt of Common Pleas of Cuyahoga County,Ohio, overruled pretrial motion to suppress andrendered judgment, and defendant appealed. TheCourt of Appeals for the Eighth Judicial District, 5Ohio App.2d 122, 214 N.E.2d 114, affirmed, theOhio Supreme Court dismissed an appeal on groundthat no substantial constitutional question was in-volved, and certiorari was granted. The SupremeCourt, Mr. Chief Justice Warren, held that policeofficer who observed conduct by defendant and an-other consistent with hypothesis that they were con-templating daylight robbery, and who approached,identified himself as officer, and asked their names,acted reasonably, when nothing appeared to dispelhis reasonable belief of their intent, in seizing de-fendant in order to search him for weapons, and didnot exceed reasonable scope of search in pattingdown outer clothing of defendants without placinghis hands in their pockets or under outer surface ofgarments until he had felt weapons, and thenmerely reached for and removed guns.

Affirmed.

Mr. Justice Douglas dissented.

West Headnotes

[1] Constitutional Law 92 3854

92 Constitutional Law

92XXVII Due Process92XXVII(A) In General

92k3848 Relationship to Other Constitu-tional Provisions; Incorporation

92k3854 k. Fourth Amendment. MostCited Cases(Formerly 92k254.2, 92k255(1))

Fourth Amendment is made applicable to states byFourteenth Amendment. U.S.C.A.Const. Amends.4, 14.


349 Searches and Seizures349I In General349k25 Persons, Places and Things Protected349k25.1 k. In General. Most Cited Cases

(Formerly 349k25, 349k7(10))Right of personal security belongs as much to cit-izen on streets as to homeowner closeted in hisstudy to dispose of his secret affairs.U.S.C.A.Const. Amend. 4.

[3] Common Law 85 9

85 Common Law85k9 k. Principles and Maxims. Most Cited

Cases(Formerly 92k83(1))

No right is held more sacred, or is more carefullyguarded, by common law, than right of every indi-vidual to possession and control of his own person,free from all restraint or interference unless byclear and unquestionable authority of law.



349k23 k. Fourth Amendment and Reason-ableness in General. Most Cited Cases(Formerly 349k7(1))

Constitution forbids not all searches and seizures

88 S.Ct. 1868 Page 1392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 44 O.O.2d 383(Cite as: 392 U.S. 1, 88 S.Ct. 1868)


but unreasonable searches and seizures.U.S.C.A.Const. Amend. 4.



(Formerly 349k25, 349k7(10))Defendant was entitled to protection of FourthAmendment as he walked down city street.U.S.C.A.Const. Amends. 4, 14.

[6] Criminal Law 110 394.4(1)


110k394.4(1) k. In General. MostCited CasesMajor thrust of rule excluding evidence seized inviolation of Fourth Amendment is deterrent to dis-courage lawless police conduct, but it also servesfunction as imperative of judicial integrity sincecourts will not be made party to lawless invasionsof constitutional rights of citizens by permitting un-hindered governmental use of fruits of such inva-sion. U.S.C.A.Const. Amend. 4.

[7] Criminal Law 110 394.4(1)


110k394.4(1) k. In General. MostCited CasesRule excluding illegally seized evidence cannotproperly be invoked to exclude products of legitim-ate police investigative techniques on ground thatmuch conduct which is closely similar involves un-

warranted intrusion upon constitutional protections.U.S.C.A.Const. Amends. 4, 14.

[8] Criminal Law 110 394.1(1)

110 Criminal Law110XVII Evidence110XVII(I) Competency in General110k394 Evidence Wrongfully Obtained110k394.1 In General

110k394.1(1) k. In General. MostCited Cases

Municipal Corporations 268 189(1)

268 Municipal Corporations268V Officers, Agents, and Employees

268V(B) Municipal Departments and Of-ficers Thereof

268k179 Police268k189 Rights, Duties, and Liabilities

of Policemen268k189(1) k. In General. Most

Cited CasesCourts have responsibility to guard against policeconduct which is overbearing or harassing or whichtrenches upon personal security without objectiveevidentiary justification which Constitution re-quires, and when such conduct is identified, it mustbe condemned by judiciary and its fruits must beexcluded from evidence in criminal trials.




Fourth Amendment applies as limitation upon po-lice conduct although officers stop short of technic-al arrest and full blown search. U.S.C.A.Const.Amends. 4, 14.

[10] Arrest 35 58




35k58 k. Grounds and Purpose in General.Most Cited Cases(Formerly 349k7(1))

Fourth Amendment governs seizures less than ar-rests. U.S.C.A.Const. Amend. 4.

[11] Arrest 35 63.5(7)



35k63.5(7) k. Mode of Stop; Warnings;Arrest Distinguished. Most Cited Cases(Formerly 268k188, 349k1)

There is “seizure” whenever police officer accostsindividual and restrains his freedom to walk away,and “search” when officer makes careful explora-tion of outer surfaces of person's clothing in at-tempt to find weapon. U.S.C.A.Const. Amend. 4.




Fourth Amendment governs all intrusions by agentsof public upon personal security. U.S.C.A.Const.Amend. 4.



349k53 Scope, Conduct, and Duration ofWarrantless Search

349k53.1 k. In General. Most Cited Cases(Formerly 349k53, 349k7(1))

Scope of search must be strictly tied to and justifiedby circumstances which rendered its initiation per-missible.

[14] Arrest 35 68(4)

35 Arrest35II On Criminal Charges35k68 Mode of Making Arrest

35k68(4) k. What Constitutes Seizure.Most Cited Cases(Formerly 35k63.5(1), 349k1)

Searches and Seizures 349 13.1


(Formerly 35k63.5(1))Officer “seized” defendant and subjected him to“search” when he took hold of him and patted downthe outer surface of his clothing. U.S.C.A.Const.Amends. 4, 14.

[15] Arrest 35 63.5(7)



35k63.5(7) k. Mode of Stop; Warnings;Arrest Distinguished. Most Cited Cases(Formerly 349k1, 268k188)

Not all personal intercourse between policemen andcitizens involves seizure, and there is seizure onlywhen officer, by means of physical force or showof authority, has in some way restrained citizen'sliberty.



349k24 k. Necessity of and Preference forWarrant, and Exceptions in General. Most CitedCases(Formerly 349k3.2)

Police must, whenever practicable, obtain advance



judicial approval of searches and seizures throughwarrant procedure, and in most instances failure tocomply with warrant requirement can only be ex-cused by exigent circumstances.




There is no ready test for determining reasonable-ness of search and seizure other than by balancingneed to search or seize against invasion whichsearch or seizure entails.




349k37 k. Nature and Source of Informa-tion in General; Suspicion or Conjecture. MostCited Cases(Formerly 349k3.3(1))

In justifying particular intrusion, police officermust be able to point to specific and articulablefacts which, taken together with rational inferencesfrom those facts, reasonably warrant that intrusion;facts must be judged against objective standard ofwhether facts available to officer at moment ofseizure or search would warrant man of reasonablecaution in belief that action taken was appropriate.

[19] Constitutional Law 92 1050

92 Constitutional Law92VII Constitutional Rights in General92VII(A) In General92k1050 k. In General. Most Cited Cases

(Formerly 92k83(1))Intrusions upon constitutionally guaranteed rightsmust be based on more than inarticulate hunches,

and simple good faith on part of officer is notenough.

[20] Arrest 35 63.5(2)



35k63.5(2) k. Necessity for Cause for Ar-rest. Most Cited Cases(Formerly 268k188)

Police officer may in appropriate circumstances andin appropriate manner approach person for purposesof investigating possible criminal behavior eventhough there is no probable cause to make arrest.

[21] Arrest 35 63.5(3.1)




35k63.5(3.1) k. In General. Most CitedCases(Formerly 35k63.5(3), 268k188)

Police officer who had observed persons go throughseries of acts, each of them perhaps innocent in it-self, but which taken together warranted further in-vestigation, was discharging legitimate investigat-ive function when he decided to approach them.

[22] Arrest 35 71.1(1)

35 Arrest35II On Criminal Charges35k71.1 Search

35k71.1(1) k. In General. Most CitedCases

Arrest 35 71.1(5)

35 Arrest



35II On Criminal Charges35k71.1 Search35k71.1(4) Scope of Search

35k71.1(5) k. Particular Places or Ob-jects. Most Cited CasesSearch incident to arrest, although justified in partby necessity to protect arresting officer from assaultwith concealed weapon, is also justified on othergrounds, and can involve relatively extensive ex-ploration of person.


349 Searches and Seizures349I In General349k67 Weapons; Protective Searches

349k70 k. Protective Searches. MostCited Cases(Formerly 349k3.3(5))

Search for weapons in absence of probable cause toarrest must be strictly circumscribed by exigencieswhich justify its initiation and must be limited tothat which is necessary for discovery of weaponswhich might be used to harm officer or othersnearby.

[24] Arrest 35 58


35k58 k. Grounds and Purpose in General.Most Cited CasesArrest is initial stage of criminal prosecution and isintended to vindicate society's interest in having itslaws obeyed and it is inevitably accompanied by fu-ture interference with individual's freedom ofmovement, whether or not trial or conviction ulti-mately follows.

[25] Arrest 35 63.5(1)



35k63.5(1) k. In General. Most CitedCases(Formerly 35k63.1, 35k63(1))

That officer may lawfully arrest only when he is ap-prised of facts sufficient to warrant belief that per-son has committed or is committing crime does notestablish that officer is equally unjustified, absentthat kind of evidence, in making any intrusionsshort of arrest.

[26] Arrest 35 63.5(4)




35k63.5(4) k. Reasonableness; Reas-onable or Founded Suspicion, Etc. Most CitedCases(Formerly 349k3.3(5), 268k188)

Police officer who has reason to believe that he isdealing with armed and dangerous individual, re-gardless of whether he has probable cause to arrestmay make reasonable search for weapons, eventhough he is not absolutely certain that individual isarmed; reasonableness of action depends not on hisinchoate and unparticularized suspicion or hunchbut on specific reasonable inferences which he isentitled to draw from facts in light of his experi-ence.


349 Searches and Seizures349I In General349k67 Weapons; Protective Searches349k67.1 k. In General. Most Cited Cases

(Formerly 349k67, 349k7(24))Police officer who observed conduct by defendantand another consistent with hypothesis that theywere contemplating daylight robbery, and who ap-proached, identified himself as officer, and asked



their names, acted reasonably, when nothing ap-peared to dispel his reasonable belief of their intent,he seized defendant in order to search him forweapons. U.S.C.A.Const. Amends. 4, 14.




Fourth Amendment proceeds as much by limita-tions upon scope of governmental action as by im-posing preconditions upon its initiation.U.S.C.A.Const. Amend. 4.

[29] Criminal Law 110 394.4(1)


110k394.4(1) k. In General. MostCited CasesDeterrent purpose of rule excluding evidence seizedin violation of Fourth Amendment rests on assump-tion that limitations upon fruit to be gathered tendto limit quest itself. U.S.C.A.Const. Amend. 4.

[30] Criminal Law 110 394.4(1)


110k394.4(1) k. In General. MostCited CasesEvidence may not be introduced if it was dis-covered by means of seizure and search which werenot reasonably related in scope to justification fortheir initiation.


349 Searches and Seizures349I In General349k67 Weapons; Protective Searches

349k70 k. Protective Searches. MostCited Cases(Formerly 349k3.3(5))

Sole justification of officer's search of personwhom he has no cause to arrest is protection of of-ficer and others nearby, and it must therefore beconfined in scope to intrusion reasonably designedto discover guns, knives, clubs, or other hidden in-struments for assault of officer. U.S.C.A.Const.Amend. 4.


349 Searches and Seizures349I In General349k67 Weapons; Protective Searches349k67.1 k. In General. Most Cited Cases

(Formerly 349k67, 349k7(24))Officer who had reasonable cause to believe thatdefendants were contemplating crime and werearmed, and thus cause to search them for weapons,did not exceed reasonable scope of search in pattingdown their outer clothing, not placing his hands inpockets or under outer surface of garments until hehad felt weapons, and then merely reaching for andremoving guns.

[33] Criminal Law 110 394.4(13)


110k394.4(13) k. Persons. MostCited CasesRevolver seized from defendant in stop and friskwas properly admitted in prosecution for carryingconcealed weapon where at time officer seized de-



fendant and searched him officer had reasonablegrounds to believe that defendant was armed anddangerous and search was restricted to what wasappropriate to discovery of particular items hesought.

[34] Arrest 35 63.5(8)



35k63.5(8) k. Justification for Arrest orPat-Down Search. Most Cited Cases(Formerly 349k3.3(5), 349k7(24), 268k188)

Where police officer observes unusual conductwhich leads him reasonably to conclude in light ofhis experience that criminal activity may be afootand that person with whom he is dealing may bearmed and presently dangerous; where in course ofinvestigating his behavior he identifies himself aspoliceman and makes reasonable inquiries; andwhere nothing in initial stages of encounter servesto dispel his reasonable fear for his own or others'safety, he is entitled to conduct carefully limitedsearch of outer clothing in attempt to discoverweapons which might be used to assault him.U.S.C.A.Const. Amends. 4, 14.**1871 *4 Louis Stokes, Cleveland, Ohio, for peti-tioner.

Reuben M. Payne, Cleveland, Ohio, for respondent.

Mr. Chief Justice WARREN delivered the opinionof the Court.

This case presents serious questions concerning therole of the Fourth Amendment in the confrontationon the street between the citizen and the policemaninvestigating suspicious circumstances.

Petitioner Terry was convicted of carrying a con-cealed weapon and sentenced to the statutorily pre-scribed term of one to three years in the peniten-

tiary. FN1 Following *5 the denial of a pretrial mo-tion to suppress, the prosecution introduced in evid-ence two revolvers and a number of bullets seizedfrom Terry and a codefendant, Richard Chilton,FN2

by Cleveland Police Detective Martin McFadden.At the hearing on the motion to suppress this evid-ence, Officer McFadden testified that while he waspatrolling in plain clothes in downtown Clevelandat approximately 2:30 in the afternoon of October31, 1963, his attention was attracted by two men,Chilton and Terry, standing on the corner of HuronRoad and Euclid Avenue. He had never seen thetwo men before, and he was unable to say preciselywhat first drew his eye to them. However, he testi-fied that he had been a policeman for 39 years and adetective for 35 and that he had been assigned topatrol this vicinity of downtown Cleveland forshoplifters and pickpockets for 30 years. He ex-plained that he had developed routine habits of ob-servation over the years and that he would ‘standand watch people or walk and watch people atmany intervals of the day.’ He added: ‘Now, in thiscase when I looked over they didn't look right to meat the time.’

FN1. Ohio Rev.Code s 2923.01 (1953)provides in part that ‘(n)o person shallcarry a pistol, bowie knife, dirk, or otherdangerous weapon concealed on or abouthis person.’ An exception is made forproperly authorized law enforcement of-ficers.

FN2. Terry and Chilton were arrested, in-dicted, tried and convicted together. Theywere represented by the same attorney, andthey made a joint motion to suppress theguns. After the motion was denied, evid-ence was taken in the case against Chilton.This evidence consisted of the testimony ofthe arresting officer and of Chilton. It wasthen stipulated that this testimony wouldbe applied to the case against Terry, and nofurther evidence was introduced in that



case. The trial judge considered the twocases together, rendered the decisions atthe same time and sentenced the two menat the same time. They prosecuted theirstate court appeals together through thesame attorney, and they petitioned thisCourt for certiorari together. Following thegrant of the writ upon this joint petition,Chilton died. Thus, only Terry's convictionis here for review.

His interest aroused, Officer McFadden took up apost of observation in the **1872 entrance to astore 300 to 400 feet *6 away from the two men. ‘Iget more purpose to watch them when I seen theirmovements,’ he testified. He saw one of the menleave the other one and walk southwest on HuronRoad, past some stores. The man paused for a mo-ment and looked in a store window, then walked ona short distance, turned around and walked back to-ward the corner, pausing once again to look in thesame store window. He rejoined his companion atthe corner, and the two conferred briefly. Then thesecond man went through the same series of mo-tions, strolling down Huron Road, looking in thesame window, walking on a short distance, turningback, peering in the store window again, and re-turning to confer with the first man at the corner.The two men repeated this ritual alternatelybetween five and six times apiece-in all, roughly adozen trips. At one point, while the two were stand-ing together on the corner, a third man approachedthem and engaged them briefly in conversation.This man then left the two others and walked weston Euclid Avenue. Chilton and Terry resumed theirmeasured pacing, peering and conferring. After thishad gone on for 10 to 12 minutes, the two menwalked off together, heading west on Euclid Aven-ue, following the path taken earlier by the thirdman.

By this time Officer McFadden had become thor-oughly suspicious. He testified that after observingtheir elaborately casual and oft-repeated reconnais-

sance of the store window on Huron Road, he sus-pected the two men of ‘casing a job, a stick-up,’and that he considered it his duty as a police officerto investigate further. He added that he feared ‘theymay have a gun.’ Thus, Officer McFadden followedChilton and Terry and saw them stop in front ofZucker's store to talk to the same man who had con-ferred with them earlier on the street corner. Decid-ing that the situation was ripe for direct action, Of-ficer McFadden approached the three men, identi-fied*7 himself as a police officer and asked fortheir names. At this point his knowledge was con-fined to what he had observed. He was not acquain-ted with any of the three men by name or by sight,and he had received no information concerningthem from any other source. When the men‘mumbled something’ in response to his inquiries,Officer McFadden grabbed petitioner Terry, spunhim around so that they were facing the other two,with Terry between McFadden and the others, andpatted down the outside of his clothing. In the leftbreast pocket of Terry's overcoat Officer McFaddenfelt 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, theofficer ordered all three men to enter Zucker's store.As they went in, he removed Terry's overcoat com-pletely, removed a .38-caliber revolver from thepocket and ordered all three men to face the wallwith their hands raised. Officer McFadden pro-ceeded to pat down the outer clothing of Chiltonand the third man, Katz. He discovered another re-volver in the outer pocket of Chilton's overcoat, butno weapons were found on Katz. The officer testi-fied that he only patted the men down to see wheth-er they had weapons, and that he did not put hishands beneath the outer garments of either Terry orChilton until he felt their guns. So far as appearsfrom the record, he never placed his hands beneathKatz' outer garments. Officer McFadden seizedChilton's gun, asked the proprietor of the store tocall a police wagon, and took all three men to thestation, where Chilton and Terry were formally



charged with carrying concealed weapons.

On the motion to suppress the guns the prosecutiontook the position that they had been seized follow-ing a search incident to a lawful arrest. The trialcourt rejected this theory, stating that it ‘would bestretching the facts beyond reasonable comprehen-sion’ to find that Officer *8 McFadden had hadprobable **1873 cause to arrest the men before hepatted them down for weapons. However, the courtdenied the defendants' motion on the ground thatOfficer McFadden, on the basis of his experience,‘had reasonable cause to believe * * * that the de-fendants were conducting themselves suspiciously,and some interrogation should be made of their ac-tion.’ Purely for his own protection, the court held,the officer had the right to pat down the outer cloth-ing of these men, who he had reasonable cause tobelieve might be armed. The court distinguishedbetween an investigatory ‘stop’ and an arrest, andbetween a ‘frisk’ of the outer clothing for weaponsand a full-blown search for evidence of crime. Thefrisk, it held, was essential to the proper perform-ance of the officer's investigatory duties, forwithout it ‘the answer to the police officer may be abullet, and a loaded pistol discovered during thefrisk is admissible.’

[1] After the court denied their motion to suppress,Chilton and Terry waived jury trial and pleaded notguilty. The court adjudged them guilty, and theCourt of Appeals for the Eighth Judicial District,Cuyahoga County, affirmed. State v. Terry, 5 OhioApp.2d 122, 214 N.E.2d 114 (1966). The SupremeCourt of Ohio dismissed their appeal on the groundthat no ‘substantial constitutional question’ was in-volved. We granted certiorari, 387 U.S. 929, 87S.Ct. 2050, 18 L.Ed.2d 989 (1967), to determinewhether the admission of the revolvers in evidenceviolated petitioner's rights under the Fourth Amend-ment, made applicable to the States by the Four-teenth. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684,6 L.Ed.2d 1081 (1961). We affirm the conviction.

I.

[2][3][4][5] The Fourth Amendment provides that‘the right of the people to be secure in their per-sons, houses, papers, and effects, against unreason-able searches and seizures, shall not be violated * **.’ This inestimable right of *9 personal securitybelongs as much to the citizen on the streets of ourcities as to the homeowner closeted in his study todispose of his secret affairs. For, as this Court hasalways recognized,

‘No right is held more sacred, or is more carefullyguarded, by the common law, than the right ofevery individual to the possession and control of hisown person, free from all restraint or interferenceof others, unless by clear and unquestionable au-thority of law.’ Union Pac. R. Co. v. Botsford, 141U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734(1891).

We have recently held that ‘the Fourth Amendmentprotects people, not places,’ Katz v. United States,389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d576 (1967), and wherever an individual may harbora reasonable ‘expectation of privacy,’ id., at 361, 88S.Ct. at 507, (Mr. Justice Harlan, concurring), he isentitled to be free from unreasonable governmentalintrusion. Of course, the specific content and incid-ents of this right must be shaped by the context inwhich it is asserted. For ‘what the Constitution for-bids is not all searches and seizures, but unreason-able searches and seizures.’ Elkins v. United States,364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d1669 (1960). Unquestionably petitioner was en-titled to the protection of the Fourth Amendment ashe walked down the street in Cleveland. Beck v.State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13L.Ed.2d 142 (1964); Rios v. United States, 364U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960);Henry v. United States, 361 U.S. 98, 80 S.Ct. 168,4 L.Ed.2d 134 (1959); United States v. Di Re, 332U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Car-roll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69



L.Ed. 543 (1925). The question is whether in all thecircumstances of this on-the-street encounter, hisright to personal security was violated by an un-reasonable search and seizure.

**1874 We would be less than candid if we did notacknowledge that this question thrusts to the foredifficult and troublesome issues regarding a sensit-ive area of police activity-issues which have neverbefore been squarely *10 presented to this Court.Reflective of the tensions involved are the practicaland constitutional arguments pressed with greatvigor on both sides of the public debate over thepower of the police to ‘stop and frisk’ -as it issometimes euphemistically termed-suspicious per-sons.

On the one hand, it is frequently argued that indealing with the rapidly unfolding and often dan-gerous situations on city streets the police are inneed of an escalating set of flexible responses,graduated in relation to the amount of informationthey possess. For this purpose it is urged that dis-tinctions should be made between a ‘stop’ and an‘arrest’ (or a ‘seizure’ of a person), and between a‘frisk’ and a ‘search.'FN3 Thus, it is argued, the po-lice should be allowed to ‘stop’ a person and detainhim briefly for questioning upon suspicion that hemay be connected with criminal activity. Upon sus-picion that the person may be armed, the policeshould have the power to ‘frisk’ him for weapons.If the ‘stop’ and the ‘frisk’ give rise to probablecause to believe that the suspect has committed acrime, then the police should be empowered tomake a formal ‘arrest,’ and a full incident ‘search’of the person. This scheme is justified in part uponthe notion that a ‘stop’ and a ‘frisk’ amount to amere ‘minor inconvenience and pettyindignity,'FN4 which can properly be imposed uponthe *11 citizen in the interest of effective law en-forcement on the basis of a police officer's suspi-cion. FN5

FN3. Both the trial court and the Ohio

Court of Appeals in this case relied uponsuch a distinction. State v. Terry, 5 OhioApp.2d 122, 125-130, 214 N.E.2d 114,117-120 (1966). See also, e.g., People v.Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458,201 N.E.2d 32 (1964), cert. denied, 379U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568(1965); Aspen, Arrest and Arrest Alternat-ives: Recent Trends, 1966 U.Ill..l.F. 241,249-254; Warner, The Uniform Arrest Act,28 Va.L.Rev. 315 (1942); Note, Stop andFrisk in California, 18 Hastings L.J. 623,629-632 (1967).

FN4. People v. Rivera, supra, n. 3, at 447,252 N.Y.S.2d, at 464, 201 N.E.2d, at 36.

FN5. The theory is well laid out in theRivera opinion:

‘(T)he evidence needed to make the in-quiry is not of the same degree of conclus-iveness as that required for an arrest. Thestopping of the individual to inquire is notan arrest and the ground upon which thepolice may make the inquiry may be lessincriminating than the ground for an arrestfor a crime known to have been commit-ted. * * *

‘And as the right to stop and inquire is tobe justified for a cause less conclusive thenthat which would sustain an arrest, so theright to frisk may be justified as an incid-ent to inquiry upon grounds of elementalsafety and precaution which might not ini-tially sustain a search. Ultimately thevalidity of the frisk narrows down towhether there is or is not a right by the po-lice to touch the person questioned. Thesense of exterior touch here involved is notvery far different from the sense of sight orhearing-senses upon which police custom-arily act.’ People v. Rivera, 14 N.Y.2d



441, 445, 447, 252 N.Y.S.2d 458, 461,463, 201 N.E.2d 32, 34, 35 (1964), cert.denied, 379 U.S. 978, 85 S.Ct. 679, 13L.Ed.2d 568 (1965).

On the other side the argument is made that the au-thority of the police must be strictly circumscribedby the law of arrest and search as it has developedto date in the traditional jurisprudence of the FourthAmendment.FN6 It is contended with some forcethat there is not-and cannot be-a variety of policeactivity which does not depend solely upon the vol-untary cooperation of the citizen and yet whichstops short of an arrest based upon probable causeto make such an arrest. The heart of the FourthAmendment, the argument **1875 runs, is a severerequirement of specific justification for any intru-sion upon protected personal security, coupled witha highly developed system of judicial controls toenforce upon the agents of the State the commandsof the Constitution. Acquiescence by the courts inthe compulsion inherent *12 in the field interroga-tion practices at issue here, it is urged, would con-stitute an abdication of judicial control over, and in-deed an encouragement of, substantial interferencewith liberty and personal security by police officerswhose judgment is necessarily colored by theirprimary involvement in ‘the often competitive en-terprise of ferreting out crime.’ Johnson v. UnitedStates, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed.436 (1948). This, it is argued, can only serve to ex-acerbate police-community tensions in the crowdedcenters of our Nation's cities.FN7

FN6. See, e.g., Foote, The Fourth Amend-ment: Obstacle or Necessity in the Law ofArrest?, 51 J.Crim.L.C. & P.S. 402 (1960).

FN7. See n. 11, infra.

[6][7] In this context we approach the issues in thiscase mindful of the limitations of the judicial func-tion in controlling the myriad daily situations inwhich policemen and citizens confront each other

on the street. The State has characterized the issuehere as ‘the right of a police officer * * * to makean on-the-street stop, interrogate and pat down forweapons (known in street vernacular as ‘stop andfrisk’).'FN8 But this is only partly accurate. For theissue is not the abstract propriety of the police con-duct, but the admissibility against petitioner of theevidence uncovered by the search and seizure. Eversince its inception, the rule excluding evidenceseized in violation of the Fourth Amendment hasbeen recognized as a principal mode of discour-aging lawless police conduct. See Weeks v. UnitedStates, 232 U.S. 383, 391-393, 34 S.Ct. 341, 344,58 L.Ed. 652 (1914). Thus its major thrust is a de-terrent one, see Linkletter v. Walker, 381 U.S. 618,629-635, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601(1965), and experience has taught that it is the onlyeffective deterrent to police misconduct in the crim-inal context, and that without it the constitutionalguarantee against unreasonable searches andseizures would be a mere ‘form of words.’ Mapp v.Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1692, 6L.Ed.2d 1081 (1961). The rule also serves anothervital function-‘the imperative of judicial integrity.’*13Elkins v. United States, 364 U.S. 206, 222, 80S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). Courtswhich sit under our Constitution cannot and willnot be made party to lawless invasions of the con-stitutional rights of citizens by permitting un-hindered governmental use of the fruits of such in-vasions. Thus in our system evidentiary rulingsprovide the context in which the judicial process ofinclusion and exclusion approves some conduct ascomporting with constitutional guarantees and dis-approves other actions by state agents. A ruling ad-mitting evidence in a criminal trial, we recognize,has the necessary effect of legitimizing the conductwhich produced the evidence, while an applicationof the exclusionary rule withholds the constitutionalimprimatur.

FN8. Brief for Respondent 2.

[8] The exclusionary rule has its limitations,



however, as a tool of judicial control. It cannotproperly be invoked to exclude the products of le-gitimate police investigative techniques on theground that much conduct which is closely similarinvolves unwarranted intrusions upon constitutionalprotections. Moreover, in some contexts the rule isineffective as a deterrent. Street encountersbetween citizens and police officers are incrediblyrich in diversity. They range from wholly friendlyexchanges of pleasantries or mutually useful in-formation to hostile confrontations of armed meninvolving arrests, or injuries, or loss of life.Moreover, hostile confrontations are not all of apiece. Some of them begin in a friendly enoughmanner, only to take a **1876 different turn uponthe injection of some unexpected element into theconversation. Encounters are initiated by the policefor a wide variety of purposes, some of which arewholly unrelated to a desire to prosecute forcrime.FN9 Doubtless some *14 police ‘field inter-rogation’ conduct violates the Fourth Amendment.But a stern refusal by this Court to condone suchactivity does not necessarily render it responsive tothe exclusionary rule. Regardless of how effectivethe rule may be where obtaining convictions is animportant objective of the police,FN10 it is power-less to deter invasions of constitutionally guaran-teed rights where the police either have no interestin prosecuting or are willing to forgo successfulprosecution in the interest of serving some othergoal.

FN9. See L. Tiffany, D. McIntyre & D.Rotenberg, Detection of Crime: Stoppingand Questioning, Search and Seizure, En-couragement and Entrapment 18-56(1967). This sort of police conduct may,for example, be designed simply to help anintoxicated person find his way home, withno intention of arresting him unless he be-comes obstreperous. Or the police may beseeking to mediate a domestic quarrelwhich threatens to erupt into violence.

They may accost a woman in an areaknown for prostitution as part of a harass-ment campaign designed to drive prosti-tutes away without the considerable diffi-culty involved in prosecuting them. Orthey may be conducting a dragnet searchof all teenagers in a particular section ofthe city for weapons because they haveheard rumors of an impending gang fight.

FN10. See Tiffany, McIntyre & Rotenberg,supra, n. 9, at 100-101; Comment, 47Nw.U.L.Rev. 493, 497-499 (1952).

[9] Proper adjudication of cases in which the exclu-sionary rule is invoked demands a constant aware-ness of these limitations. The wholesale harassmentby certain elements of the police community, ofwhich minority groups, particularly Negroes, fre-quently complain,FN11 will not be *15 stopped bythe exclusion of any evidence from any criminal tri-al. Yet a rigid and unthinking application of the ex-clusionary rule, in futile protest against practiceswhich it can never be used effectively to control,may exact a high toll in human injury and frustra-tion of efforts to prevent crime. No judicial opinioncan comprehend the protean variety of the street en-counter, and we can only judge the facts of the casebefore us. Nothing we say today is to be taken asindicating approval of police conduct outside thelegitimate investigative sphere. Under our decision,courts still retain their traditional responsibility toguard against police conduct which is over-bearingor harassing, or which trenches upon personal se-curity without the objective evidentiary justificationwhich the Constitution requires. When such con-duct is identified, it must be condemned by the ju-diciary and its fruits must be excluded from evid-ence in criminal trials. And, of course, our approvalof legitimate and restrained investigative conductundertaken**1877 on the basis of ample factualjustification should in no way discourage the em-ployment of other remedies than the exclusionaryrule to curtail abuses for which that sanction may



prove inappropriate.

FN11. The President's Commission onLaw Enforcement and Administration ofJustice found that ‘(i)n many communities,field interrogations are a major source offriction between the police and minoritygroups.’ President's Commission on LawEnforcement and Administration ofJustice, Task Force Report: The Police 183(1967). It was reported that the frictioncaused by ‘(m)isuse of field interrogations'increases ‘as more police departments ad-opt ‘aggressive patrol’ in which officersare encouraged routinely to stop and ques-tion persons on the street who are un-known to them, who are suspicious, orwhose purpose for being abroad is notreadily evident.' Id., at 184. While the fre-quency with which ‘frisking’ forms a partof field interrogation practice varies tre-mendously with the locale, the objective ofthe interrogation, and the particular officer,see Tiffany, McIntyre & Rotenberg, supra,n. 9, at 47-48, it cannot help but be aseverely exacerbating factor in police-community tensions. This is particularlytrue in situations where the ‘stop and frisk’of youths or minority group members is‘motivated by the officers' perceived needto maintain the power image of the beat of-ficer, an aim sometimes accomplished byhumiliating anyone who attempts to under-mine police control of the streets.’ Ibid.

Having thus roughly sketched the perimeters of theconstitutional debate over the limits on police in-vestigative conduct in general and the backgroundagainst which this case presents itself, we turn ourattention to the quite narrow question posed by thefacts before us: whether it is always unreasonablefor a policeman to seize a person and subject him toa limited search for weapons unless there is prob-able cause for an arrest. *16 Given the narrowness

of this question, we have no occasion to canvass indetail the constitutional limitations upon the scopeof a policeman's power when he confronts a citizenwithout probable cause to arrest him.

II.

[10][11][12] Our first task is to establish at whatpoint in this encounter the Fourth Amendment be-comes relevant. That is, we must decide whetherand when Officer McFadden ‘seized’ Terry andwhether and when he conducted a ‘search.’ There issome suggestion in the use of such terms as ‘stop’and ‘frisk’ that such police conduct is outside thepurview of the Fourth Amendment because neitheraction rises to the level of a ‘search’ or ‘seizure’within the meaning of the Constitution.FN12 Weemphatically reject this notion. It is quite plain thatthe Fourth Amendment governs ‘seizures' of theperson which do not eventuate in a trip to the sta-tion house and prosecution for crime-‘arrests' in tra-ditional terminology. It must be recognized thatwhenever a police officer accosts an individual andrestrains his freedom to walk away, he has ‘seized’that person. And it is nothing less than sheer tortureof the English language to suggest that a careful ex-ploration of the outer surfaces of a person's clothingall over his or her body in an attempt to findweapons is not a ‘search,’ Moreover, it is simplyfantastic to urge that such a procedure *17 per-formed in public by a policeman while the citizenstands helpless, perhaps facing a wall with hishands raised, is a ‘petty indignity.'FN13 It is a seri-ous intrusion upon the sanctity of the person, whichmay inflict great indignity and arouse strong resent-ment, and it is not to be undertaken lightly. FN14

FN12. In this case, for example, the OhioCourt of Appeals stated that ‘we must becareful to distinguish that the ‘frisk’ au-thorized herein includes only a ‘frisk’ for adangerous weapon. It by no means author-izes a search for contraband, evidentiary



material, or anything else in the absence ofreasonable grounds to arrest. Such a searchis controlled by the requirements of theFourth Amendment, and probable cause isessential.' State v. Terry, 5 Ohio App.2d122, 130, 214 N.E.2d 114, 120 (1966). Seealso, e.g., Ellis v. United States, 105U.S.App.D.C. 86, 88, 264 F.2d 372, 374(1959); Comment, 65 Col.L.Rev. 848, 860and n. 81 (1965).

FN13. Consider the following apt descrip-tion:

‘(T)he officer must feel with sensitive fin-gers every portion of the prisoner's body.A through search must be made of the pris-oner's arms and armpits, waistline andback, the groin and area about the testicles,and entire surface of the legs down to thefeet.’ Priar & Martin, Searching and Dis-arming Criminals, 45 J.Crim.L.C. & P.S.481 (1954).

FN14. See n. 11, supra, and accompanyingtext.

We have noted that the abusive practiceswhich play a major, though by no meansexclusive, role in creating this friction arenot susceptible of control by means of theexclusionary rule, and cannot properly dic-tate our decision with respect to the powersof the police in genuine investigative andpreventive situations. However, the degreeof community resentment aroused by par-ticular practices is clearly revelant to anassessment of the quality of the intrusionupon reasonable expectations of personalsecurity caused by those practices.

[13][14] The danger in the logic which proceedsupon distinctions between **1878 a ‘stop’ and an‘arrest,’ or ‘seizure’ of the person, and between a

‘frisk’ and a ‘search’ is twofold. It seeks to isolatefrom constitutional scrutiny the initial stages of thecontact between the policeman and the citizen. Andby suggesting a rigid all-or-nothing model of justi-fication and regulation under the Amendment, itobscures the utility of limitations upon the scope, aswell as the initiation, of police action as a means ofconstitutional regulation. FN15 This Court has heldin *18 the past that a search which is reasonable atits inception may violate the Fourth Amendment byvirtue of its intolerable intensity and scope. Kre-men v. United States, 353 U.S. 346, 77 S.Ct. 828, 1L.Ed.2d 876 (1957); *19Go-Bart Importing Co. v.United States, 282 U.S. 344, 356-358, 51 S.Ct. 153,158, 75 L.Ed. 374 (1931); see United States v. DiRe, 332 U.S. 581, 586-587, 68 S.Ct. 222, 225, 92L.Ed. 210 (1948). The scope of the search must be‘strictly tied to and justified by’ the circumstanceswhich rendered its initiation permissible. Warden v.Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652(1967) (Mr. Justice Fortas, concurring); see e.g.,Preston v. United States, 376 U.S. 364, 367-368, 84S.Ct. 881, 884, 11 L.Ed.2d 777 (1964); Agnello v.United States, 269 U.S. 20, 30-31, 46 S.Ct. 4, 6, 70L.Ed. 145 (1925).

FN15. These dangers are illustrated in partby the course of adjudication in the Courtof Appeals of New York. Although its firstdecision in this area, People v. Rivera, 14N.Y.2d 441, 252 N.Y.S.2d 458, 201N.E.2d 32 (1964), cert. denied, 379 U.S.978, 85 S.Ct. 679, 13 L.Ed.2d 568 (1965),rested squarely on the notion that a ‘frisk’was not a ‘search,’ see nn. 3-5, supra, itwas compelled to recognize in People v.Taggart, 20 N.Y.2d 335, 342, 283N.Y.S.2d 1, 8, 229 N.E.2d 581, 586,(1967), that what it had actually authorizedin Rivera, and subsequent decisions, see,e.g., People v. Pugach, 15 N.Y.2d 65, 255N.Y.S.2d 833, 204 N.E.2d 176 (1964),cert. denied, 380 U.S. 936, 85 S.Ct. 946,



13 L.Ed.2d 823 (1965), was a ‘search’upon less than probable cause. However, inacknowledging that no valid distinctioncould be maintained on the basis of itscases, the Court of Appeals continued todistinguish between the two in theory. Itstill defined ‘search’ as it had in Rivera-asan essentially unlimited examination of theperson for any and all seizable items-andmerely noted that the cases had upheld po-lice intrusions which went far beyond theoriginal limited conception of a ‘frisk.’Thus, principally because it failed to con-sider limitations upon the scope ofsearches in individual cases as a potentialmode of regulation, the Court of Appealsin three short years arrived at the positionthat the Constitution must, in the name ofnecessity, be held to permit unrestrainedrummaging about a person and his effectsupon mere suspicion. It did apparently lim-it its holding to ‘cases involving seriouspersonal injury or grave irreparable prop-erty damage,’ thus excluding those in-volving ‘the enforcement of sumptuarylaws, such as gambling, and laws of lim-ited public consequence, such as narcoticsviolations, prostitution, larcenies of the or-dinary kind, and the like.’ People v. Tag-gart, supra, at 340, 283 N.Y.S.2d at 6, 229N.E.2d at 584.

In our view the sounder course is to recog-nize that the Fourth Amendment governsall intrusions by agents of the public uponpersonal security, and to make the scope ofthe particular intrusion, in light of all theexigencies of the case, a central element inthe analysis of reasonableness. Cf. Brineg-ar v. United States, 338 U.S. 160, 183, 69S.Ct. 1302, 1314, 93 L.Ed. 1879 (1949)(Mr. Justice Jackson, dissenting). CompareCamara v. Muncipal Court, 387 U.S. 523,

537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930(1967). This seems preferable to an ap-proach which attributes too much signific-ance to an overly technical definition of‘search,’ and which turns in part upon ajudge-made hierarchy of legislative enact-ments in the criminal sphere. Focusing theinquiry squarely on the dangers and de-mands of the particular situation alsoseems more likely to produce rules whichare intelligible to the police and the publicalike than requiring the officer in the heatof an unfolding encounter on the street tomake a judgment as to which laws are ‘oflimited public consequence.’

The distinctions of classical ‘stop-and-frisk’ theorythus serve to divert attention from the central in-quiry under the Fourth Amendment-the reasonable-ness in all the circumstances of theparticular**1879 governmental invasion of a cit-izen's personal security. ‘Search’ and ‘seizure’ arenot talismans. We therefore reject the notions thatthe Fourth Amendment does not come into play atall as a limitation upon police conduct if the of-ficers stop short of something called a ‘technical ar-rest’ or a ‘full-blown search.’

[15][16] In this case there can be no question, then,that Officer McFadden ‘seized’ petitioner and sub-jected him to a ‘search’ when he took hold of himand patted down the outer surfaces of his clothing.We must decide whether at that point it was reason-able for Officer McFadden to have interfered withpetitioner's personal security as he did.FN16 And indetermining whether the seizure and search were‘unreasonable’ our inquiry *20 is a dual one-whether the officer's action was justified at its in-ception, and whether it was reasonably related inscope to the circumstances which justified the inter-ference in the first place.

FN16. We thus decide nothing today con-cerning the constitutional propriety of an



investigative ‘seizure’ upon less than prob-able cause for purposes of ‘detention’ and/or interrogation. Obviously, not all person-al intercourse between policemen and cit-izens involves ‘seizures' of persons. Onlywhen the officer, by means of physicalforce or show of authority, has in someway restrained the liberty of a citizen maywe conclude that a ‘seizure’ has occurred.We cannot tell with any certainty upon thisrecord whether any such ‘seizure’ tookplace here prior to Officer McFadden's ini-tiation of physical contact for purposes ofsearching Terry for weapons, and we thusmay assume that up to that point no intru-sion upon constitutionally protected rightshad occurred.

III.

[17][18][19] If this case involved police conductsubject to the Warrant Clause of the Fourth Amend-ment, we would have to ascertain whether‘probable cause’ existed to justify the search andseizure which took place. However, that is not thecase. We do not retreat from our holdings that thepolice must, whenever practicable, obtain advancejudicial approval of searches and seizures throughthe warrant procedure, see e.g., Katz v. UnitedStates, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967); Beck v. State of Ohio, 379 U.S. 89, 96, 85S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); Chapman v.United States, 365 U.S. 610, 81 S.Ct. 776, 5L.Ed.2d 828 (1961), or that in most instances fail-ure to comply with the warrant requirement canonly be excused by exigent circumstances, see, e.g.,Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18L.Ed.2d 782 (1967) (hot pursuit); cf. Preston v.United States, 376 U.S. 364, 367-368, 84 S.Ct. 881,884, 11 L.Ed.2d 777 (1964). But we deal here withan entire rubric of police conduct-necessarily swiftaction predicated upon the on-the-spot observationsof the officer on the beat-which historically has notbeen, and as a practical matter could not be, subjec-

ted to the warrant procedure. Instead, the conductinvolved in this case must be tested by the FourthAmendment's general proscription against unreas-onable searches and seizures.FN17

FN17. See generally Leagre, The FourthAmendment and the Law of Arrest, 54 J.Crim.L.C. & P.S. 393, 396-403 (1963).

Nonetheless, the notions which underlie both thewarrant procedure and the requirement of probablecause remain fully relevant in this context. In orderto assess the reasonableness of Officer McFadden'sconduct as a general proposition, it is necessary‘first to focus upon *21 the governmental interestwhich allegedly justifies official intrusion upon theconstitutionally protected interests of the privatecitizen,’ for there is ‘no ready test for determiningreasonableness other than by balancing the need tosearch (or seize) against the invasion which thesearch (or seizure) entails.’ **1880Camara v. Mu-nicipal Court, 387 U.S. 523, 534-535, 536-537, 87S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). And injustifying the particular intrusion the police officermust be able to point to specific and articulablefacts which, taken together with rational inferencesfrom those facts, reasonably warrant thatintrusion.FN18 The scheme of the Fourth Amend-ment becomes meaningful only when it is assuredthat at some point the conduct of those chargedwith enforcing the laws can be subjected to themore detached, neutral scrutiny of a judge whomust evaluate the reasonableness of a particularsearch or seizure in light of the particular circum-stances.FN19 And in making that assessment it isimperative that the facts be judged against an ob-jective standard: would the facts *22 available tothe officer at the moment of the seizure or thesearch ‘warrant a man of reasonable caution in thebelief’ that the action taken was appropriate? Cf.Carroll v. United States, 267 U.S. 132, 45 S.Ct.280, 69 L.Ed. 543 (1925); Beck v. State of Ohio,379 U.S. 89, 96-97, 85 S.Ct. 223, 229, 13 L.Ed.2d142 (1964).FN20 Anything less would invite intru-



sions upon constitutionally guaranteed rights basedon nothing more substantial than inarticulatehunches, a result this Court has consistently refusedto sanction. See, e.g., Beck v. Ohio, supra; Rios v.United States, 364 U.S. 253, 80 S.Ct. 1431, 4L.Ed.2d 1688 (1960); Henry v. United States, 361U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Andsimple “good faith on the part of the arresting of-ficer is not enough.' * * * If subjective good faithalone were the test, the protections of the FourthAmendment would evaporate, and the people wouldbe ‘secure in their persons, houses, papers and ef-fects,’ only in the discretion of the police.' Beck v.Ohio, supra, at 97, 85 S.Ct. at 229.

FN18. This demand for specificity in theinformation upon which police action ispredicated is the central teaching of thisCourt's Fourth Amendment jurisprudence.See Beck v. State of Ohio, 379 U.S. 89,96-97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142(1964); Ker v. State of California, 374 U.S.23, 34-37, 83 S.Ct. 1623, 1632, 10 L.Ed.2d726 (1963); Wong Sun v. United States,371 U.S. 471, 479-484, 83 S.Ct. 407, 416,9 L.Ed.2d 441 (1963); Rios v. UnitedStates, 364 U.S. 253, 261-262, 80 S.Ct.1431, 1437, 4 L.Ed.2d 1688 (1960); Henryv. United States, 361 U.S. 98, 100-102, 80S.Ct. 168, 171, 4 L.Ed.2d 134 (1959);Draper v. United States, 358 U.S. 307,312-314, 79 S.Ct. 329, 333, 3 L.Ed.2d 327(1959); Brinegar v. United States, 338 U.S.160, 175-178, 69 S.Ct. 1302, 1312, 93L.Ed. 1879 (1949); Johnson v. UnitedStates, 333 U.S. 10, 15-17, 68 S.Ct. 367,371, 92 L.Ed. 436 (1948); United States v.Di Re, 332 U.S. 581, 593-595, 68 S.Ct.222, 229, 92 L.Ed. 210 (1948); Husty v.United States, 282 U.S. 694, 700-701, 51S.Ct. 240, 242, 75 L.Ed. 629 (1931); Dun-bra v. United States, 268 U.S. 435, 441, 45S.Ct. 546, 549, 69 L.Ed. 1032 (1925); Car-

roll v. United States, 267 U.S. 132,159-162, 45 S.Ct. 280, 288, 69 L.Ed. 543(1925); Stacey v. Emery, 97 U.S. 642, 645,24 L.Ed. 1035 (1878).

FN19. See, e.g., Katz v. United States, 389U.S. 347, 354-357, 88 S.Ct. 507, 514, 19L.Ed.2d 576 (1967); Berger v. State ofNew York, 388 U.S. 41, 54-60, 87 S.Ct.1873, 1884, 18 L.Ed.2d 1040 (1967); John-son v. United States, 333 U.S. 10, 13-15,68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); cf.Wong Sun v. United States, 371 U.S. 471,479-480, 83 S.Ct. 407, 413, 9 L.Ed.2d 441(1963). See also Aguilar v. State of Texas,378 U.S. 108, 110-115, 84 S.Ct. 1509,1514, 12 L.Ed.2d 723 (1964).

FN20. See also cases cited in n. 18, supra.

[20][21] Applying these principles to this case, weconsider first the nature and extent of the govern-mental interests involved. One general interest is ofcourse that of effective crime prevention and detec-tion; it is this interest which underlies the recogni-tion that a police officer may in appropriate circum-stances and in an appropriate manner approach aperson for purposes of investigating possibly crim-inal behavior even though there is no probablecause to make an arrest. It was this legitimate in-vestigative function Officer McFadden was dischar-ging when he decided to approach petitioner andhis companions He had observed Terry, Chilton,and Katz go Through a series of acts, each of themperhaps innocent**1881 in itself, but which takentogether warranted further investigation. There isnothing unusual in two men standing together on astreet corner, perhaps waiting for someone. Nor isthere anything suspicious about people *23 in suchcircumstances strolling up and down the street,singly or in pairs. Store windows, moreover, aremade to be looked in. But the story is quite differ-ent where, as here, two men hover about a streetcorner for an extended period of time, at the end of



which it becomes apparent that they are not waitingfor anyone or anything; where these men pace al-ternately along an identical route, pausing to starein the same store window roughly 24 times; whereeach completion of this route is followed immedi-ately by a conference between the two men on thecorner; where they are joined in one of these con-ferences by a third man who leaves swiftly; andwhere the two men finally follow the third and re-join him a couple of blocks away. It would havebeen poor police work indeed for an officer of 30years' experience in the detection of thievery fromstores in this same neighborhood to have failed toinvestigate this behavior further.

The crux of this case, however, is not the proprietyof Officer McFadden's taking steps to investigatepetitioner's suspicious behavior, but rather, whetherthere was justification for McFadden's invasion ofTerry's personal security by searching him forweapons in the course of that investigation. We arenow concerned with more than the governmentalinterest in investigating crime; in addition, there isthe more immediate interest of the police officer intaking steps to assure himself that the person withwhom he is dealing is not armed with a weapon thatcould unexpectedly and fatally be used against him.Certainly it would be unreasonable to require thatpolice officers take unnecessary risks in the per-formance of their duties. American criminals have along tradition of armed violence, and every year inthis country many law enforcement officers arekilled in the line of duty, and thousands more arewounded. *24 Virtually all of these deaths and asubstantial portion of the injuries are inflicted withguns and knives.FN21

FN21. Fifty-seven law enforcement of-ficers were killed in the line of duty in thiscountry in 1966, bringing the total to 335for the seven-year period beginning with1960. Also in 1966, there were 23,851 as-saults on police officers, 9,113 of whichresulted in injuries to the policeman. Fifty-

five of the 57 officers killed in 1966 diedfrom gunshot wounds, 41 of them inflictedby handguns easily secreted about the per-son. The remaining two murders were per-petrated by knives. See Federal Bureau ofInvestigation, Uniform Crime Reports forthe United States-1966, at 45-48, 152 andTable 51.

The easy availability of firearms to poten-tial criminals in this country is well knownand has provoked much debate. See, e.g.,President's Commission on Law Enforce-ment and Administration of Justice, TheChallenge of Crime in a Free Society239-243 (1967). Whatever the merits ofgun-control proposals, this fact is relevantto an assessment of the need for some formof self-protective search power.

In view of these facts, we cannot blind ourselves tothe need for law enforcement officers to protectthemselves and other prospective victims of viol-ence in situations where they may lack probablecause for an arrest. When an officer is justified inbelieving that the individual whose suspicious be-havior he is investigating at close range is armedand presently dangerous to the officer or to others,it would appear to be clearly unreasonable to denythe officer the power to take necessary measures todetermine whether the person is in fact carrying aweapon and to neutralize the threat of physicalharm.

We must still consider, however, the nature andquality of the intrusion on individual rights whichmust be accepted if police officers are to be con-ceded the right to search for weapons in situationswhere probable cause to arrest for crime is lacking.Even a limited search of the **1882 outer clothingfor weapons constitutes a severe, *25 though brief,intrusion upon cherished personal security, and itmust surely be an annoying, frightening, and per-haps humiliating experience. Petitioner contends



that such an intrusion is permissible only incidentto a lawful arrest, either for a crime involving thepossession of weapons or for a crime the commis-sion of which led the officer to investigate in thefirst place. However, this argument must be closelyexamined.

Petitioner does not argue that a police officershould refrain from making any investigation ofsuspicious circumstances until such time as he hasprobable cause to make an arrest; nor does he denythat police officers in properly discharging their in-vestigative function may find themselves confront-ing persons who might well be armed and danger-ous. Moreover, he does not say that an officer is al-ways unjustified in searching a suspect to discoverweapons. Rather, he says it is unreasonable for thepoliceman to take that step until such time as thesituation evolves to a point where there is probablecause to make an arrest. When that point has beenreached, petitioner would concede the officer's rightto conduct a search of the suspect for weapons,fruits or instrumentalities of the crime, or ‘mere’evidence, incident to the arrest.

[22][23] There are two weaknesses in this line ofreasoning however. First, it fails to take account oftraditional limitations upon the scope of searches,and thus recognizes no distinction in purpose, char-acter, and extent between a search incident to an ar-rest and a limited search for weapons. The former,although justified in part by the acknowledged ne-cessity to protect the arresting officer from assaultwith a concealed weapon, Preston v. United States,376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d777 (1964), is also justified on other grounds, ibid.,and can therefore involve a relatively extensive ex-ploration of the person. A search for weapons in theabsence of probable cause to *26 arrest, however,must, like any other search, be strictly circum-scribed by the exigencies which justify its initi-ation. Warden v. Hayden, 387 U.S. 294, 310, 87S.Ct. 1642, 1652, 18 L.Ed.2d 782 (1967) (Mr.Justice Fortas, concurring). Thus it must be limited

to that which is necessary for the discovery ofweapons which might be used to harm the officer orothers nearby, and may realistically be character-ized as something less than a ‘full’ search, eventhough it remains a serious intrusion.

[24][25] A second, and related, objection to peti-tioner's argument is that it assumes that the law ofarrest has already worked out the balance betweenthe particular interests involved here-the neutraliza-tion of danger to the policeman in the investigativecircumstance and the sanctity of the individual. Butthis is not so. An arrest is a wholly different kind ofintrusion upon individual freedom from a limitedsearch for weapons, and the interests each is de-signed to serve are likewise quite different. An ar-rest is the initial stage of a criminal prosecution. Itis intended to vindicate society's interest in havingits laws obeyed, and it is inevitably accompanied byfuture interference with the individual's freedom ofmovement, whether or not trial or conviction ulti-mately follows.FN22 The protective search forweapons, on the other hand, constitutes a brief,though far from inconsiderable, intrusion upon thesanctity of the person. It does not follow that be-cause an officer may lawfully arrest a person onlywhen he is apprised of facts sufficient to warrant abelief that the person has committed or is commit-ting a crime, the officer is equally unjustified, ab-sent that kind of evidence, in making any intrusionsshort of an arrest. Moreover, a perfectly reasonableapprehension of danger may arise long before theofficer is possessed of **1883 adequate informa-tion to justify taking a person into custody for *27the purpose of prosecuting him for a crime. Peti-tioner's reliance on cases which have worked outstandards of reasonableness with regard to‘seizures' constituting arrests and searches incidentthereto is thus misplaced. It assumes that the in-terests sought to be vindicated and the invasions ofpersonal security may be equated in the two cases,and thereby ignores a vital aspect of the analysis ofthe reasonableness of particular types of conduct



under the Fourth Amendment. See Camara v. Muni-cipal Court, supra.

FN22. See generally W. LaFave, Arrest-The Decision to Take a Suspect into Cus-tody 1-13 (1965).

[26] Our evaluation of the proper balance that hasto be struck in this type of case leads us to concludethat there must be a narrowly drawn authority topermit a reasonable search for weapons for the pro-tection of the police officer, where he has reason tobelieve that he is dealing with an armed and dan-gerous individual, regardless of whether he hasprobable cause to arrest the individual for a crime.The officer need not be absolutely certain that theindividual is armed; the issue is whether a reason-ably prudent man in the circumstances would bewarranted in the belief that his safety or that of oth-ers was in danger. Cf. Beck v. State of Ohio, 379U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142(1964); Brinegar v. United States, 338 U.S. 160,174-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879(1949); Stacey v. Emery, 97 U.S. 642, 645, 24L.Ed. 1035 (1878).FN23 And in determiningwhether the officer acted reasonably in such cir-cumstances, due weight must be given, not to hisinchoate and unparticularized suspicion or ‘hunch,’but to the specific reasonable inferences which he isentitled to draw from the facts in light of his experi-ence. Cf. Brinegar v. United States, supra.

FN23. See also cases cited in n. 18, supra.

IV.

[27] We must now examine the conduct of OfficerMcFadden in this case to determine whether hissearch and seizure of petitioner were reasonable,both at their inception*28 and as conducted. He hadobserved Terry, together with Chilton and anotherman, acting in a manner he took to be preface to a‘stick-up.’ We think on the facts and circumstancesOfficer McFadden detailed before the trial judge a

reasonably prudent man would have been warrantedin believing petitioner was armed and thus presen-ted a threat to the officer's safety while he was in-vestigating his suspicious behavior. The actions ofTerry and Chilton were consistent with McFadden'shypothesis that these men were contemplating adaylight robbery-which, it is reasonable to assume,would be likely to involve the use of weapons-andnothing in their conduct from the time he first no-ticed them until the time he confronted them andidentified himself as a police officer gave him suffi-cient reason to negate that hypothesis. Although thetrio had departed the original scene, there was noth-ing to indicate abandonment of an intent to commita robbery at some point. Thus, when Officer Mc-Fadden approached the three men gathered beforethe display window at Zucker's store he had ob-served enough to make it quite reasonable to fearthat they were armed; and nothing in their responseto his hailing them, identifying himself as a policeofficer, and asking their names served to dispel thatreasonable belief. We cannot say his decision atthat point to seize Terry and pat his clothing forweapons was the product of a volatile or inventiveimagination, or was undertaken simply as an act ofharassment; the record evidences the tempered actof a policeman who in the course of an investiga-tion had to make a quick decision as to how to pro-tect himself and others from possible danger, andtook limited steps to do so.

[28][29][30] The manner in which the seizure andsearch were conducted is, of course, as vital a partof the inquiry as whether they were warranted atall. The Fourth Amendment proceeds as much bylimitations upon the *29 scope ofgovernmental**1884 action as by imposing precon-ditions upon its initiation. Compare Katz v. UnitedStates, 389 U.S. 347, 354-356, 88 S.Ct. 507, 514,19 L.Ed.2d 576 (1967). The entire deterrent pur-pose of the rule excluding evidence seized in viola-tion of the Fourth Amendment rests on the assump-tion that ‘limitations upon the fruit to be gathered



tend to limit the quest itself.’ United States v.Poller, 43 F.2d 911, 914, 74 A.L.R. 1382 (C.A.2dCir. 1930); see, e.g., Linkletter v. Walker, 381 U.S.618, 629-635, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601(1965); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684,6 L.Ed.2d 1081 (1961); Elkins v. United States, 364U.S. 206, 216-221, 80 S.Ct. 1437, 1446, 4 L.Ed.2d1669 (1960). Thus, evidence may not be introducedif it was discovered by means of a seizure andsearch which were not reasonably related in scopeto the justification for their initiation Warden v.Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652, 18L.Ed.2d 782 (1967) (Mr. Justice Fortas, concur-ring).

[31] We need not develop at length in this case,however, the limitations which the Fourth Amend-ment places upon a protective seizure and searchfor weapons. These limitations will have to be de-veloped in the concrete factual circumstances of in-dividual cases. See Sibron v. New York, 392 U.S.40, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 decidedtoday. Suffice it to note that such a search, unlike asearch without a warrant incident to a lawful arrest,is not justified by any need to prevent the disap-pearance or destruction of evidence of crime. SeePreston v. United States, 376 U.S. 364, 367, 84S.Ct. 1642, 1652, 18 L.Ed.2d 782 (1964). The solejustification of the search in the present situation isthe protection of the police officer and othersnearby, and it must therefore be confined in scopeto an intrusion reasonably designed to discoverguns, knives, clubs, or other hidden instruments forthe assault of the police officer.

[32] The scope of the search in this case presents noserious problem in light of these standards. OfficerMcFadden patted down the outer clothing of peti-tioner and his two companions. He did not place hishands in their pockets or under the outer surface oftheir garments until he had *30 felt weapons, andthen he merely reached for and removed the guns.He never did invade Katz' person beyond the outersurfaces of his clothes, since he discovered nothing

in his patdown which might have been a weapon.Officer McFadden confined his search strictly towhat was minimally necessary to learn whether themen were armed and to disarm them once he dis-covered the weapons. He did not conduct a generalexploratory search for whatever evidence of crimin-al activity he might find.

V.

[33][34] We conclude that the revolver seized fromTerry was properly admitted in evidence againsthim. At the time he seized petitioner and searchedhim for weapons, Officer McFadden had reasonablegrounds to believe that petitioner was armed anddangerous, and it was necessary for the protectionof himself and others to take swift measures to dis-cover the true facts and neutralize the threat ofharm if it materialized. The policeman carefully re-stricted his search to what was appropriate to thediscovery of the particular items which he sought.Each case of this sort will, of course, have to be de-cided on its own facts. We merely hold today thatwhere a police officer observes unusual conductwhich leads him reasonably to conclude in light ofhis experience that criminal activity may be afootand that the persons with whom he is dealing maybe armed and presently dangerous, where in thecourse of investigating this behavior he identifieshimself as a policeman and makes reasonable in-quiries, and where nothing in the initial stages ofthe encounter serves to dispel his reasonable fearfor his own or others' safety, he is entitled for theprotection of himself and **1885 others in the areato conduct a carefully limited search of the outerclothing of such persons in an attempt to discoverweapons which might be used to assault him. *31Such a search is a reasonable search under theFourth Amendment, and any weapons seized mayproperly be introduced in evidence against the per-son from whom they were taken.

Affirmed.



Mr. Justice BLACK concurs in the judgment andthe opinion except where the opinion quotes fromand relies upon this Court's opinion in Katz v.United States and the concurring opinion in Wardenv. Hayden.Mr. Justice HARLAN, concurring.While I unreservedly agree with the Court's ulti-mate holding in this case, I am constrained to fill ina few gaps, as I see them, in its opinion. I do thisbecause what is said by this Court today will serveas initial guidelines for law enforcement authoritiesand courts throughout the land as this importantnew field of law develops.

A police officer's right to make an on-the-street‘stop’ and an accompanying ‘frisk’ for weapons isof course bounded by the protections afforded bythe Fourth and Fourteenth Amendments. The Courtholds, and I agree, that while the right does not de-pend upon possession by the officer of a valid war-rant, nor upon the existence of probable cause, suchactivities must be reasonable under the circum-stances as the officer credibly relates them in court.Since the question in this and most cases is whetherevidence produced by a frisk is admissible, theproblem is to determine what makes a frisk reason-able.

If the State of Ohio were to provide that police of-ficers could, on articulable suspicion less than prob-able cause, forcibly frisk and disarm personsthought to be carrying concealed weapons, I wouldhave little doubt that action taken pursuant to suchauthority could be constitutionally reasonable. Con-cealed weapons create an immediate*32 and severedanger to the public, and though that danger mightnot warrant routine general weapons checks, itcould well warrant action on less than a‘probability.’ I mention this line of analysis becauseI think it vital to point out that it cannot be appliedin this case. On the record before us Ohio has notclothed its policemen with routine authority to friskand disarm on suspicion; in the absence of state au-thority, 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 anyother citizen. Consequently, the Ohio courts did notrest the constitutionality of this frisk upon any gen-eral authority in Officer McFadden to take reason-able steps to protect the citizenry, including him-self, from dangerous weapons.

The state courts held, instead, that when an officeris lawfully confronting a possibly hostile person inthe line of duty he has a right, springing only fromthe necessity of the situation and not from anybroader right to disarm, to frisk for his own protec-tion. This holding, with which I agree and withwhich I think the Court agrees, offers the only satis-factory basis I can think of for affirming this con-viction. The holding has, however, two logical co-rollaries that I do not think the Court has fully ex-pressed.

In the first place, if the frisk is justified in order toprotect the officer during an encounter with a cit-izen, the officer must first have constitutionalgrounds to insist on an encounter, to make a for-cible stop. Any person, including a policeman, is atliberty to avoid a person he considers dangerous. Ifand when a policeman has a right instead to disarmsuch a person for his own protection, he must firsthave a right not to avoid him but to be in his pres-ence. That right must be more than the liberty(again, possessed by every citizen) to address ques-tions to other persons, for ordinarily the person *33addressed has an **1886 equal right to ignore hisinterrogator and walk away; he certainly need notsubmit to a frisk for the questioner's protection. Iwould make it perfectly clear that the right to friskin this case depends upon the reasonableness of aforcible stop to investigate a suspected crime.

Where such a stop is reasonable, however, the rightto frisk must be immediate and automatic if thereason for the stop is, as here, an articulable suspi-cion of a crime of violence. Just as a full search in-cident to a lawful arrest requires no additional justi-fication, a limited frisk incident to a lawful stop



must often be rapid and routine. There is no reasonwhy an officer, rightfully but forcibly confronting aperson suspected of a serious crime, should have toask one question and take the risk that the answermight be a bullet.

The facts of this case are illustrative of a properstop and an incident frisk. Officer McFadden hadno probable cause to arrest Terry for anything, buthe had observed circumstances that would reason-ably lead an experienced, prudent policeman to sus-pect that Terry was about to engage in burglary orrobbery. His justifiable suspicion afforded a properconstitutional basis for accosting Terry, restraininghis liberty of movement briefly, and addressingquestions to him, and Officer McFadden did so.When he did, he had no reason whatever to supposethat Terry might be armed, apart from the fact thathe suspected him of planning a violent crime. Mc-Fadden asked Terry his name, to which Terry‘mumbled something.’ Whereupon McFadden,without asking Terry to speak louder and withoutgiving him any chance to explain his presence orhis actions, forcibly frisked him.

I would affirm this conviction for what I believe tobe the same reasons the Court relies on. I would,however, make explicit what I think is implicit inaffirmance on *34 the present facts. Officer Mc-Fadden's right to interrupt Terry's freedom ofmovement and invade his privacy arose only be-cause circumstances warranted forcing an en-counter with Terry in an effort to prevent or invest-igate a crime. Once that forced encounter was justi-fied, however, the officer's right to take suitablemeasures for his own safely followed automatic-ally.

Upon the foregoing premises, I join the opinion ofthe Court.Mr. Justice WHITE, concurring.I join the opinion of the Court, reserving judgment,however, on some of the Court's general remarksabout the scope and purpose of the exclusionary

rule which the Court has fashioned in the process ofenforcing the Fourth Amendment.

Also, although the Court puts the matter aside inthe context of this case, I think an additional wordis in order concerning the matter of interrogationduring an investigative stop. There is nothing in theConstitution which prevents a policeman from ad-dressing questions to anyone on the streets. Absentspecial circumstances, the person approached maynot be detained or frisked but may refuse to cooper-ate and go on his way. However, given the propercircumstances, such as those in this case, it seemsto me the person may be briefly detained against hiswill while pertinent questions are directed to him.Of course, the person stopped is not obliged to an-swer, answers may not be compelled, and refusal toanswer furnishes no basis for an arrest, although itmay alert the officer to the need for continued ob-servation. In my view, it is temporary detention,warranted by the circumstances, which chiefly jus-tifies the protective frisk for weapons. Perhaps thefrisk itself, where proper, will have beneficial res-ults whether questions are asked or not. If weaponsare found, an arrest will follow.*35 If none arefound, the frisk may nevertheless serve preventiveends because of its unmistakable message that sus-picion has been aroused. But if the investigativestop is sustainable at all, constitutional **1887rights are not necessarily violated if pertinent ques-tions are asked and the person is restrained brieflyin the process.

Mr. Justice DOUGLAS, dissenting.I agree that petitioner was ‘seized’ within the mean-ing of the Fourth Amendment. I also agree thatfrisking petitioner and his companions for guns wasa ‘search.’ But it is a mystery how that ‘search’ andthat ‘seizure’ can be constitutional by FourthAmendment standards, unless there was ‘probablecause’ FN1 to believe that (1) a crime had beencommitted or (2) a crime was in the process of be-ing committed or (3) a crime was about to be com-mitted.



FN1. The meaning of ‘probable cause’ hasbeen developed in cases where an officerhas reasonable grounds to believe that acrime has been or is being committed. See,e.g., The Thompson, 3 Wall. 155, 18 L.Ed.55; Stacey v. Emery, 97 U.S. 642, 24 L.Ed.1035; Director General v. Kastenbaum,263 U.S. 25, 44 S.Ct. 52, 68 L.Ed. 146;Carroll v. United States, 267 U.S. 132, 45S.Ct. 280, 69 L.Ed.2d 543; United States v.Di Re, 332 U.S. 581, 68 S.Ct. 222, 92L.Ed. 210; Brinegar v. United States, 338U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879;Draper v. United States, 358 U.S. 307, 79S.Ct. 329, 3 L.Ed.2d 327; Henry v. UnitedStates, 361 U.S. 98, 80 S.Ct. 168, 4L.Ed.2d 134. In such cases, of course, theofficer may make an ‘arrest’ which resultsin charging the individual with commis-sion of a crime. But while arresting per-sons who have already committed crimesis an important task of law enforcement, anequally if not more important function iscrime prevention and deterrence of would-be criminals. ‘(T)here is no war betweenthe Constitution and common sense,’Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct.1684, 1693. Police officers need not waituntil they see a person actually commit acrime before they are able to ‘seize’ thatperson. Respect for our constitutional sys-tem and personal liberty demands in re-turn, however, that such a ‘seizure’ bemade only upon ‘probable cause.’

The opinion of the Court disclaims the existence of‘probable cause.’ If loitering were in issue and that*36 was the offense charged, there would be‘probable cause’ shown. But the crime here is car-rying concealed weapons; FN2 and there is no basisfor 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, forhe can act only if there is a showing of ‘probablecause.’ We hold today that the police have greaterauthority to make a ‘seizure’ and conduct a ‘search’than a judge has to authorize such action. We havesaid precisely the opposite over and over again.FN3

FN2. Ohio Rev.Code s 2923.01.

FN3. This Court has always used the lan-guage of ‘probable cause’ in determiningthe constitutionality of an arrest without awarrant. See, e.g., Carroll v. United States,267 U.S. 132, 156, 161-162, 45 S.Ct. 280,288, 69 L.Ed. 543; McDonald v. UnitedStates, 335 U.S. 451, 455-456, 69 S.Ct.191, 194, 93 L.Ed. 153; Henry v. UnitedStates, 361 U.S. 98, 80 S.Ct. 168, 4L.Ed.2d 134; Wong Sun v. United States,371 U.S. 471, 479-484, 83 S.Ct. 407, 416,9 L.Ed.2d 441. To give power to the policeto seize a person on some grounds differ-ent from or less than ‘probable cause’would be handing them more authoritythan could be exercised by a magistrate inissuing a warrant to seize a person. As westated in Wong Sun v. United States, 371U.S. 471, 83 S.Ct. 407, with respect to re-quirements for arrests without warrants:‘Whether or not the requirements of reliab-ility and particularity of the information onwhich an officer may act are more strin-gent where an arrest warrant is absent, theysurely cannot be less stringent than wherean arrest warrant is obtained.’ Id., at 479,83 S.Ct. at 413. And we said in Brinegar v.United States, 338 U.S. 160, 176, 69 S.Ct.1302, 1311, 93 L.Ed. 1879.

‘These long-prevailing standards (for prob-able cause) seek to safeguard citizens fromrash and unreasonable interferences withprivacy and from unfounded charges ofcrime. They also seek to give fair leeway



for enforcing the law in the community'sprotection. Because many situations whichconfront officers in the course of executingtheir duties are more or less ambiguous,room must be allowed for some mistakeson their part. But the mistakes must bethose of reasonable men, acting on factsleading sensibly to their conclusions ofprobability. The rule of probable cause is apractical, non-technical conception afford-ing the best compromise that has beenfound for accommodating these often op-posing interests. Requiring more would un-duly hamper law enforcement. To allowless would be to leave law-abiding citizensat the mercy of the officers' whim orcaprice.’ And see Johnson v. United States,333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92L.Ed. 436; Wrightson v. United States, 95U.S.App.D.C. 390, 393-394, 222 F.2d 556,559-560 (1955).

*37 In other words, police officers up to today havebeen permitted to effect arrests**1888 or searcheswithout warrants only when the facts within theirpersonal knowledge would satisfy the constitutionalstandard of probable cause. At the time of their‘seizure’ without a warrant they must possess factsconcerning the person arrested that would have sat-isfied a magistrate that ‘probable cause’ was indeedpresent. The term ‘probable cause’ rings a bell ofcertainty that is not sounded by phrases such as‘reasonable suspicion.’ Moreover, the meaning of‘probable cause’ is deeply imbedded in our consti-tutional history. As we stated in Henry v. UnitedStates, 361 U.S. 98, 100-102, 80 S.Ct. 168, 170:

‘The requirement of probable cause has roots thatare deep in our history. The general warrant, inwhich the name of the person to be arrested was leftblank, and the writs of assistance, against whichJames Otis inveighed, both perpetuated the oppress-ive practice of allowing the police to arrest andsearch on suspicion. Police control took the place

of judicial control, since no showing of ‘probablecause’ before a magistrate was required.

‘That philosophy (rebelling against these practices)later was reflected in the Fourth Amendment. Andas the early American decisions both before andimmediately after its adoption show, common ru-mor or report, suspicion, or even ‘strong reason tosuspect’ was not adequate to support a warrant *38for arrest. And that principle has survived to thisday. * * *

‘* * * It is important, we think, that this require-ment (of probable cause) be strictly enforced, forthe standard set by the Constitution protects boththe officer and the citizen. If the officer acts withprobable cause, he is protected even though it turnsout that the citizen is innocent. * * * And while asearch without a warrant is, within limits, permiss-ible if incident to a lawful arrest, if an arrestwithout a warrant is to support an incidental search,it must be made with probable cause. * * * This im-munity of officers cannot fairly be enlarged withoutjeopardizing the privacy or security of the citizen.’

The infringement on personal liberty of any‘seizure’ of a person can only be ‘reasonable’ underthe Fourth Amendment if we require the police topossess ‘probable cause’ before they seize him.Only that line draws a meaningful distinctionbetween an officer's mere inkling and the presenceof facts within the officer's personal knowledgewhich would convince a reasonable man that theperson seized has committed, is committing, or isabout to commit a particular crime. ‘In dealing withprobable cause, * * * as the very name implies, wedeal with probabilities. These are not technical;they are the factual and practical considerations ofeveryday life on which reasonable and prudentmen, not legal technicians, act.’ Brinegar v. UnitedStates, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310.

To give the police greater power than a magistrateis to take a long step down the totalitarian path.



Perhaps such a step is desirable to cope with mod-ern forms of lawlessness. But if it is taken, it shouldbe the deliberate choice of the people through aconstitutional amendment. *39 Until the FourthAmendment, **1889 which is closely allied withthe Fifth,FN4 is rewritten, the person and the ef-fects of the individual are beyond the reach of allgovernment agencies until there are reasonablegrounds to believe (probable cause) that a criminalventure has been launched or is about to belaunched.

FN4. See Boyd v. United States, 116 U.S.616, 633, 6 S.Ct. 524, 534, 29 L.Ed. 746.

‘For the ‘unreasonable searches andseizures' condemned in the fourth amend-ment are almost always made for the pur-pose of compelling a man to give evidenceagainst himself, which in criminal cases iscondemned in the fifth amendment; andcompelling a man ‘in a criminal case to bea witness against himself,’ which is con-demned in the fifth amendment, throwslight on the question as to what is an‘unreasonable search and seizure’ withinthe meaning of the fourth amendment.'

There have been powerful hydraulic pressuresthroughout our history that bear heavily on theCourt to water down constitutional guarantees andgive the police the upper hand. That hydraulic pres-sure has probably never been greater than it istoday.

Yet if the individual is no longer to be sovereign, ifthe police can pick him up whenever they do notlike the cut of his jib, if they can ‘seize’ and‘search’ him in their discretion, we enter a new re-gime. The decision to enter it should be made onlyafter a full debate by the people of this country.

U.S.Ohio 1968.Terry v. Ohio

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 44O.O.2d 383

END OF DOCUMENT



United States Court of Appeals,Second Circuit.

UNITED STATES of America, Appellee,v.

Howard M. BRONSTEIN and Douglas P. Penning-ton, Appellants.

Nos. 1184, 1194, Dockets 75-1124, 75-1125.

Argued June 27, 1975.Decided Aug. 8, 1975.

Defendants moved to suppress a quantity ofmarijuana which was detected in their baggagethrough use of a marijuana-sniffing police dog. TheUnited States District Court for the District of Con-necticut, T. Emmet Clarie, Chief Judge, denied themotion, and defendants appealed. The Court of Ap-peals, Mulligan, Circuit Judge, held that such dog'ssniffing, nipping and biting at defendants' luggageat public airline terminal was not a “search” withinprotection of Fourth Amendment, and that evidencefailed to establish that defendants' consent to searchby agents was coerced.

Affirmed.

Mansfield, Circuit Judge, filed a concurring opin-ion.

West Headnotes


96H Controlled Substances96HIV Searches and Seizures96HIV(B) Search Without Warrant

96Hk120 Persons and Personal Effects,Search of

96Hk124 k. Informants. Most CitedCases(Formerly 138k184(4), 138k184 Drugs and Nar-

cotics)In view of tip received from airline employee in-formants previously found to be reliable by WestCoast Drug Enforcement Administration agent,who in turn alerted Connecticut officers, there wasample cause for the agents to pursue the lead and toplace under surveillance the fully described passen-gers and their luggage, which was subsequentlyfound to contain marijuana.



Cases(Formerly 349k1)

Marijuana-detecting police dog's sniffing, nippingand biting at defendants' luggage at public airlineterminal was not a “search” within protection ofFourth Amendment. U.S.C.A.Const. Amend. 4.



349k72 k. Airport and Boarding Searches.Most Cited Cases(Formerly 349k7(10))

For purposes of Fourth Amendment, there can beno reasonable expectation of privacy when onetransports baggage by plane. U.S.C.A.Const.Amend. 4.



(Formerly 349k25, 349k7(10))What a person knowingly exposes to the public,

Page 1521 F.2d 459, 31 A.L.R. Fed. 920(Cite as: 521 F.2d 459)


even in his own home or office, is not a subject ofFourth Amendment protection. U.S.C.A.Const.Amend. 4.



349k201 k. Questions of Law or Fact. MostCited Cases(Formerly 349k7(27))

Determination of question of volitional consent to asearch is a question of fact which depends upon to-tality of all the circumstances.

[6] Criminal Law 110 394.6(4)

110 Criminal Law110XVII Evidence110XVII(I) Competency in General110k394 Evidence Wrongfully Obtained

110k394.6 Motions Challenging Ad-missibility of Evidence

110k394.6(4) k. Evidence on Mo-tion. Most Cited CasesEvidence failed to establish that defendants' consentto search of their bags at airport was coerced andnot voluntary.*459 Thomas P. Smith, Asst. U. S. Atty., D. Conn.(Peter C. Dorsey, U. S. Atty., D. Conn.), for ap-pellee.

Aaron P. Slitt, Stephen McEleney, Hartford, Conn.,for appellants.

Before CLARK, Associate Justice,[FN*] MANS-FIELD and MULLIGAN, Circuit Judges.

FN* United States Supreme Court, retired,sitting by designation.

MULLIGAN, Circuit Judge:

This is an appeal from a decision of Hon. T. Emmet

Clarie, Chief Judge, United States District Court forthe District of Connecticut, rendered on November5, 1974, denying appellants' motion to suppresssome 240 pounds of marijuana seized in a warrant-less search at Bradley International Airport on July6, 1974. The appellants, Howard Bronstein andDouglas Pennington, were indicted *460 by a grandjury sitting in Hartford, Connecticut on July 19,1974 on a single count of possession with the intentto distribute the marijuana in violation of 21 U.S.C.ss 812 and 841(a)(1). On January 9, 1975 both ap-pellants pleaded guilty, reserving the right to appealthe denial of the suppression motion. [FN1]

FN1. This procedure was consented to bythe Government with the approval of theDistrict Court. This court has also ap-proved the practice in the past. E. g.,United States v. Burke, 517 F.2d 377,378-379 (2d Cir., 1975); United States v.Faruolo, 506 F.2d 490, 491 n. 2 (2d Cir.1974). The appellants were both sentencedto four months' imprisonment and twoyears' probation.

I

On Saturday morning, July 6, 1974, two men pur-chased tickets for American Airlines Flight No. 10from San Diego, California to Bradley InternationalAirport in Windsor, Connecticut. The men's behavi-or attracted the attention of two ticket agents whoalerted a Special Agent of the Drug EnforcementAdministration (DEA). Each carried two new largesuitcases all of about the same size, shape andweight and all equipped with combination locks.Although they did not purchase their tickets togeth-er and appeared to act as strangers to each other,they were later seen by the ticket agents to be talk-ing together like old friends. The DEA agent, whohad previous experience with the ticket agents andfound them to be reliable informants, telephonedthe Hartford, Connecticut office of DEA alerting it



to the suspicions of the airline personnel. In addi-tion to providing a full personal description of themen and their luggage, he also stated that their tick-ets had been purchased under the names B. Drakeand H. Braun. The DEA in Hartford in turn advisedthe Connecticut State Police unit at Bradley fieldwhich had a German Shepherd, “Meisha”, whichwas trained to detect marijuana. When Flight 10 ar-rived at the airport in Connecticut, the luggage wasremoved by carts to the baggage area where it wasto be picked up by the passengers. About 50 piecesof luggage were lined up on the conveyor beltwhich was not moved until Meisha, the canine can-nabis connoisseur, was given the opportunity towalk along the row of baggage, sniffing at the bags.Meisha reacted positively, i. e., sniffed vigorouslyand nipped and bit, at only two pieces of luggage,both new, about the same size and equipped withcombination locks. While a state trooper and aDEA agent were occupied in observing Meisha,other DEA agents observed two men in the areawhere the passengers pick up luggage. They werethe only two men fitting the description which hadbeen received from California and each was ob-served picking up one of the bags identified byMeisha as well as another bag of comparable sizewith a combination lock.

Pennington was approached by agents who asked ifhe was “B. Drake” and if the luggage he was carry-ing belonged to him. When Pennington made theseadmissions, he was placed under arrest. Bronsteinhad walked to the rent-a-car parking area beforeagents intercepted him and asked if he was “H.Braun” and if he owned the baggage he was carry-ing. Upon his admissions, Bronstein was asked toproceed with the agents to the state trooper office inthe terminal where he was also placed under arrest.

After their arrest both defendants were advised oftheir rights and stated that they did not wish tomake any statement until they had consulted with alawyer. Both indicated their desire to leave asquickly as possible and asked the agents what pro-

cedure would have to be followed to obtain their re-lease. They were advised that an affidavit wouldhave to be prepared and a United States Magistratelocated before a search warrant could issue. Hewould then arraign them and set bail. They werealso advised that if they wanted to give permissionto open the bags, this would save time. The appel-lants then asked if they could speak privately. Theagents left the room and the two men *461 con-ferred together for about 15 minutes. They thenagreed to open the bags if the agents would be will-ing to recommend a non-surety bond or a releasewithout bond and the agents agreed. Judge Clariefound that the bond discussion was initiated by theappellants, and that there was no physical force,verbal abuse or guns drawn by the agents. He con-cluded: “Defendants freely and voluntarily consen-ted to a search of their four suitcases . . . .”

The agents opened the 4 pieces of luggage and eachcontained about 60 pounds of marijuana as well asmoth balls, apparently utilized to disguise themarijuana odor. The appellants were then arraignedand released on personal recognizance, non-suretybonds.

II

The appellants' first contention is that the law en-forcement officers' action which we have describedconstituted a warrantless search and seizure“without probable cause in the use of a trained Ger-man Shepherd dog.” Appellants' argument herehinges upon the proposition that the sniffing, nip-ping and biting at the luggage by Meisha at the air-port was a search within the protection of theFourth Amendment. This contention, apparentlymade for the first time to a district court in this cir-cuit, was described as “nonsense” below andtermed “frivolous” by the District of Columbia Cir-cuit in United States v. Fulero, 498 F.2d 748(1974). In that brief opinion it appears that anothermarijuana detecting dog, “Chief,” had sniffed the



air around a busline terminal locker room and haddiscovered the presence of the drug in a footlocker.The court found ample probable cause for the issu-ance of a search warrant and characterized the con-duct of the police as “a model of intelligent and re-sponsible procedure.” [FN2]

FN2. In United States v. Solis, 393 F.Supp.325 (D.C.Cal., 1975), it was held that theuse of marijuana-detecting dogs consti-tuted a search per se under the FourthAmendment. Aside from the fact that thiscase is not binding upon us, we note thatthe dogs in Solis sniffed at a closed trailer,which the court held to be a “privateplace” where there was a reasonable ex-pectation of privacy. Moreover, the dogswere employed in response to a tip from aninformer of unproven reliability.

[1] In view of the tip received from the airline-employee informants previously found to be reli-able by the West Coast DEA agent, who in turnalerted the Connecticut officers here, there wasample cause for the agents to pursue the lead and toplace under surveillance the fully described passen-gers and their luggage. See United States v.Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13L.Ed.2d 684 (1965); United States v. Sultan, 463F.2d 1066, 1069 (2d Cir. 1972). It is well under-stood that marijuana, like hashish, has an offensiveand pungent aroma. See United States v. Falley,489 F.2d 33, 37-38 (2d Cir. 1973). The danger ofthe detection of the drug by reason of its odor un-doubtedly was the reason for packing the mothballs in the luggage. If the police officers here haddetected the aroma of the drug through their ownolfactory senses, there could be no serious conten-tion that their sniffing in the area of the bags wouldbe tantamount to an unlawful search. UnitedStates v. Johnston, 497 F.2d 397, 398 (9th Cir.);United States v. Martinez-Miramontes, 494 F.2d808, 810 (9th Cir. 1974), cert. denied, 419 U.S.897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); United

States v. Halliday, 487 F.2d 1215, 1217 (5th Cir.1973). We fail to understand how the detection ofthe odoriferous drug by the use of the sensitive andschooled canine senses here employed alters thesituation and renders the police procedure constitu-tionally suspect.

[2][3][4] Since the dogs have not yet at least beentrained to talk, their response to the presence of thedrug is conveyed by nosing along the seams of thebags where they would open and then nipping andbiting at the bags. This biting did not expose thecontents of the bag and while it may well have con-stituted a technical trespass, see United States v.Artieri, 491 F.2d 440, 445-46 (2d Cir.), *462 cert.denied, 417 U.S. 949, 95 S.Ct. 142, 42 L.Ed.2d 118(1974), it cannot be sensibly characterized as asearch or seizure. The canine surveillance conduc-ted here occurred in a public airline terminal andthe subject was baggage shipped on a public airflight. There can be no reasonable expectation ofprivacy when one transports baggage by plane, par-ticularly today when the menace to public safety bythe skyjacker and the passage of dangerous or haz-ardous freight compels continuing scrutiny of pas-sengers and their impedimenta. See United States v.Edwards, 498 F.2d 496, 500 (2d Cir. 1974); seealso Air Line Pilots Ass'n, Int'l. v. CAB, 516 F.2d1269 (2d Cir. 1975). “What a person knowingly ex-poses to the public, even in his own home or office,is not a subject of Fourth Amendment protec-tion.” Katz v. United States, 389 U.S. 347, 351,88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); and seeUnited States v. Johnston, supra, 497 F.2d at 398.

We cannot agree with the contention that the policeare limited to the resources of their physical sensesand that the use of scientific or, in this case, canineassistance in pursuit of the criminal is impermiss-ible. The law is settled contrariwise.[FN3] The ap-pellants here rely however upon United States v.Albarado, 495 F.2d 799, 802-03 (2d Cir. 1974),where Judge Oakes characterized the magnetometerairport search process as a search within the protec-



tion of the Fourth Amendment. (Cf. United Statesv. Bell, 464 F.2d 667, 673 (2d Cir.), cert. denied,409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972)). We think that the use of Meisha and the magneto-meter are clearly distinguishable.

FN3. It has often been held that the use ofcertain “sense-enhancing” instruments toaid in the detection of contraband, etc.,does not constitute an impermissibleFourth Amendment search. E.g., UnitedStates v. Lee, 274 U.S. 559, 563, 47 S.Ct.746, 71 L.Ed. 1202 (1927) (opinion ofBrandeis, J.) (use of boat searchlight is“not prohibited by the Constitution.”);United States v. Hood, 493 F.2d 677, 680(9th Cir.), cert. denied, 419 U.S. 852, 95S.Ct. 852, 42 L.Ed.2d 84 (1974) (flashlightused to look into car at night “did not con-stitute a search . . . .”); United States v.Minton, 488 F.2d 37, 38 (4th Cir. 1973),cert. denied, 416 U.S. 936, 94 S.Ct. 1936(1974) (use of binoculars); Cobb v. Wyr-ick, 379 F.Supp. 1287, 1292 n.3(W.D.Mo.1974) (use of flashlight).

Every passenger boarding a plane and his carry-onluggage are required to pass through the electronicdevices which we have had occasion to describe inprevious opinions in this court (E. g., United Statesv. Edwards, supra; United States v. Albarado,supra; United States v. Bell, supra.) Since the mag-netometer is so calibrated that it can be activated byany sufficient quantity of metal, the air traveller inup to fifty per cent of the inspections will set it off,United States v. Lopez, 328 F.Supp. 1077, 1086(E.D.N.Y.1971), and thus may well be subjected toa search of his person or his baggage because theycontain such innocuous objects as lockets, keychains, combs or coins. Although the search may bejustified by the possibility that the passenger is car-rying weapons or explosives which may pose adanger to flight, the fact is that when a passengerhas been apprehended as the result of the search,

usually the reason for his arrest has been his pos-session of narcotics.[FN4] The concern of the Al-barado panel expressed in Judge Oakes's opinionfocused on the magnetometer as a sweeping metal-detecting device brought into action against all pas-sengers without probable cause in any particularcase. Moreover “it (the magnetometer) searches forand discloses metal items within areas most intim-ate to the person where there is a normal expecta-tion of privacy,” 495 F.2d at 803.[FN5]

FN4. In fact a panel of this circuit hasnoted that, in the great majority of cases,arrests resulting from the use of anti-hijacking procedures have nothing to dowith aircraft security, but instead involveother offenses, usually the possession ofcontraband. United States v. Albarado,supra, 495 F.2d at 805 & n. 12.

FN5. Subsequently, Judge Friendly in hisEdwards opinion was able to distinguishAlbarado on this ground. In Edwards, thedefendant set off the magnetometer whenshe walked through it while carrying herbaggage; only this baggage was thensearched, and heroin was found in one ofher bags. Hence, “the case presents nosuch questions concerning a search of herperson as were considered in Albarado.''498 F.2d at 500. Of course, we here alsohave a search of baggage and not a person-al search.

*463 The police dog sniffing procedure here, itseems to us, is distinguishable in kind and degree.The magnetometer search is indiscriminate and thepresence of sufficient metal willy-nilly leads to thebody or baggage search. Meisha by contrast wastrained only to detect marijuana which is contra-band and its possession a criminal offense. Appel-lants claim that Meisha was only fifty per cent ac-curate since she missed two of the bags; in contrast,the Government points out that her record is perfect



because in this case and in previous performances,she has never reacted positively to baggage whichdid not contain cannabis. The issue is not how wecompute Meisha's track record but rather that un-like the magnetometer, Meisha responds only tomarijuana. To the extent that moth balls or othersubstances may be utilized to camouflage the scent,she may be in error but her mistake favors the sus-pect and precludes search and subsequent arrest. Insum, the intrusion is much more restricted and wasaimed not at the person but his baggage whichleaked the telltale aroma. Moreover Meisha was notemployed in a dragnet operation directed against allflight passengers but rather on the basis of reliableinformation that reasonably triggered the surveil-lance employed here. While the prospect of wide-spread police use of highly developed scientificequipment invading the privacy of the populace un-questionably creates justifiable constitutional con-cern, we cannot reasonably consider Meisha underthe circumstances revealed on the record before usto pose any such threat. The police have tradition-ally employed dogs to detect crime and criminalsand the limited but effective use of the animal herecreates no constitutional issue of substance. Wefind no search or seizure violative of the FourthAmendment and ample probable cause to make thearrest of the appellants here.

III

[5][6] Appellants' second proposition, that theirconsent to the search of their bags was not volun-tary but was coerced, is not substantial. The argu-ment is that their repeated requests for counsel wereignored and that they were threatened with a punit-ive arraignment and high bond if they did not agreeto open the suitcases. The District Court here con-ducted a two-day hearing at which the agents in-volved as well as the defendants testified. ChiefJudge Clarie had the opportunity to observe person-ally the demeanor of the witnesses and to gaugetheir credibility. His findings of fact, referred to

supra, are detailed and are not “clearly erroneous,”United States v. Boston, 508 F.2d 1171, 1179 (2dCir. 1974). While the agents here did recommend anon-surety bond as they agreed to, there was testi-mony that this bargain was initiated by the appel-lants and not the agents. Moreover, testimonyshowed that both defendants were advised that theydid not have to make any statement without con-sulting counsel. There was no demand for immedi-ate counsel; no intensive questioning, and no forceor threat of force, were employed. While there wasa conflict in the testimonies of the agents and thedefendants, Judge Clarie credited the agents' testi-mony and there is nothing in the transcript whichwould indicate that his judgment was erroneous.Both appellants appeared to be intelligent and artic-ulate,[FN6] and understood what was going on. Thedetermination of the question of volitional consentto a search is a question of fact which depends uponthe “totality of all the circumstances.” *464Sch-neckloth v. Bustamonte, 412 U.S. 218, 227, 93S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v.Faruolo, 506 F.2d 490, 493 (2d Cir. 1974). Thiswas the test correctly applied by the court below.

FN6. Bronstein is a college graduate; Pen-nington attended Arizona State Universityfor over three and one-half years.

Affirmed.MANSFIELD, Circuit Judge (concurring):Although I concur in the result reached by the ma-jority, I do so by a somewhat different route.

I am unable to agree with the majority that use of amarijuana-sniffing dog to ascertain the contents ofa private bag amounts to some sort of “plain smell,”comparable to a “plain view,” Coolidge v. NewHampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022,29 L.Ed.2d 564 (1971), rather than a search. Theessence of a search is the intrusion into an area(whether it be a bag or a room) which the owner orpossessor is entitled to enjoy as private. As the ma-jority recognizes, there is no such intrusion when a



human being can, with his own senses and withoutphysical investigation, ascertain the contents. And,even though it is stretching the rule somewhat, thepolice have been permitted to enhance or magnifythe human senses with the aid of instruments suchas binoculars or flashlights, see cases cited in ma-jority note 3, Supra. But that is not the case herewhere the “nose” being put into others' businesswas clearly an intrusion. The police agents here didnot smell or see any contraband, nor were theirsenses enhanced. Their only indication thatmarijuana was present was the action of the dog.Their own senses were replaced by the more sensit-ive nose of the dog in the same manner that a policeofficer's ears are replaced by a hidden microphonein areas where he could not otherwise hear becauseof the inaudibility of the sounds. The illegality ofthe latter practice in the absence of a search warrantor special circumstances has long been established.E. g., Katz v. United States, 389 U.S. 347, 88 S.Ct.507, 19 L.Ed.2d 576 (1967).

There is no legally significant difference betweenthe use of an X-ray machine or magnetometer to in-vade a closed area in order to detect the presence ofa metal pistol or knife, which we have held to be asearch, United States v. Albarado, 495 F.2d 799,802-03 (2d Cir. 1974), and the use of a dog to snifffor marijuana inside a private bag. Each is a non-human means of detecting the contents of a closedarea without physically entering into it. The magne-tometer ascertains whether there is metal in the hid-den space by detecting changes in the magneticfields surrounding the area of the hidden space. Thedog uses its extremely sensitive olfactory nerve todetermine whether there are marijuana moleculesemanating from the hidden space. Neither consti-tutes a particularly offensive intrusion, such as ran-sacking the contents of the hidden space, or expos-ing a person to indignities in the case of a personalsearch. But the fact remains that each detects hid-den objects without actual entry and without the en-hancement of human senses. The fact that the can-

ine's search is more particularized and discriminatethan that of the magnetometer is not a basis for alegal distinction. The important factor is not the rel-ative accuracy of the sensing device but the fact ofthe intrusion into a closed area otherwise hiddenfrom human view, which is the hallmark of anysearch. If, as we have held, examination of carry-onluggage and individual passengers by a magneto-meter or X-ray machine amounts to a search withinthe prohibition of the Fourth Amendment because itdiscloses hidden items within areas where there is anormal expectation of privacy, United States v. Al-barado, supra, 495 F.2d at 802-03, then the intru-sion of a sniffing dog in search of marijuana mustalso fall within that prohibition when directed athidden areas where there is similarly a normal ex-pectation of privacy.

Setting aside the expectation of privacy issue for amoment, the circumstances justifying a warrantlesssearch of boarding passengers and their hand lug-gage are not present here. We have upheld warrant-less magnetometer searches against Fourth Amend-ment attack, at *465 least where advance notice hasbeen given, on the ground that they represent aminimal intrusion that is necessary and reasonableto protect against the danger to life and propertythreatened by possible skyjacking. See UnitedStates v. Edwards, 498 F.2d 496 (2d Cir. 1974);United States v. Albarado, supra. Here the contra-band being sought presents no danger to the passen-gers or to the airplane itself. Moreover, the baggagewas searched after the plane had arrived at its des-tination and the baggage had been unloaded.

The question, therefore, is whether the dog-searchcan be upheld on other grounds or whether it penet-rated an area as to which there is a normal or justi-fiable expectation of privacy and thus violated theFourth Amendment. Surely the use of a dog to sniffan alighting passenger or passerby for the purposeof determining the presence of marijuana on hisperson would not be permitted any more thanwould be the use of a sophisticated detection device



to search his person for contraband. However, onewho consigns luggage to the common baggage areaof a public carrier, airport or similar facility cannotexpect to enjoy as much privacy with respect to thebag as he would with respect to his person or prop-erty carried by him personally into, on or from thecarrier or facility. It is common knowledge that lug-gage turned over to a public carrier will be handledby many persons who, although not permitted toopen it without the owner's permission, may feel it,weigh it, check its locks, straps and seams to insurethat it will not fall apart in transit, and shake it todetermine whether the contents are fragile or dan-gerous. See United States v. Johnston, 497 F.2d 397(9th Cir. 1974).

Since a person's expectation of privacy with respectto his baggage declines as the anticipated public ac-cess to the baggage increases, it is not unreason-able, where the police have reasonable grounds tosuspect the presence of contraband, to permit use ofan external method or device to determine whetherthe baggage contains contraband. On this ground Iwould uphold the search here. However, I wouldstrictly limit such a search to cases where there aregrounds for such suspicion, similar to or strongerthan that present here, and would not permit awholesale examination of all baggage in the hopethat a crime might be detected. Otherwise, as themajority recognizes, the spectre of a “Big Brother”baggage search, uncurbed by the Fourth Amend-ment, would then loom much larger on the horizon.As more sophisticated detection devices are de-veloped in the future, such a broad authority wouldbe an open invitation to conduct blanket examina-tions, thus eroding the principles underlying theFourth Amendment itself.

C.A.Conn. 1975.U.S. v. Bronstein521 F.2d 459, 31 A.L.R. Fed. 920

END OF DOCUMENT



791 F.2d 1512

(Cite as: 791 F.2d 1512)


United States Court of Appeals,

Eleventh Circuit. UNITED STATES of America, Plaintiff-Appellee,

v. Gerald Lee EDMONDSON, Defendant-Appellant.

No. 85-3852.

June 24, 1986. Defendant was convicted in the United States District

Court for the Middle District of Florida, Howell W.

Melton, J., of bank robbery and attempted bank rob-

bery, and he appealed. The Court of Appeals,

Hatchett, Circuit Judge, held that: (1) officers had

probable cause to arrest defendant; (2) there were no

exigent circumstances justifying warrantless arrest at

defendant's home; (3) defendant's actions did not

amount to implied consent to be arrested; and (4)

defendant's confession was sufficiently attenuated

from illegal arrest to be admissible. Affirmed.

West Headnotes [1] Arrest 35 68(9) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(9) k. Entry Without Warrant

Permissible. Most Cited Cases (Formerly 35k68.5(3)) Arrest 35 68(10) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(10) k. Entry Without Warrant

Impermissible. Most Cited Cases

(Formerly 35k68.5(4)) Warrantless, nonconsensual entry into suspect's home

to make routine felony arrest is presumed to be un-

reasonable; such entry may be proper, however,

where there are both probable cause and exigent cir-

cumstances. U.S.C.A. Const.Amend. 4. [2] Criminal Law 110 1158.12 110 Criminal Law 110XXIV Review 110XXIV(O) Questions of Fact and Findings 110k1158.8 Evidence 110k1158.12 k. Evidence Wrongfully

Obtained. Most Cited Cases (Formerly 110k1158(4)) Trial court's determinations at suppression hearing

are reviewed as to findings of fact under “clearly er-

roneous” standard; all facts should be construed in

light most favorable to prevailing party, and finding

of fact is “clearly erroneous” only when reviewing

court is left with definite and firm conviction that

mistake has been committed. [3] Arrest 35 63.4(12) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without

Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(7) Information from Others 35k63.4(12) k. Identification or De-

scription of Offender or Vehicle. Most Cited Cases Arrest 35 63.4(13) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without

Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(13) k. Personal Knowledge or

Observation in General. Most Cited Cases Where officers had traced license plate number of car

791 F.2d 1512

(Cite as: 791 F.2d 1512)


used in aborted robbery to woman, witnesses at

woman's apartment building identified photograph of

robber taken by bank surveillance camera as man

who had been seen with woman, and officer saw man

resembling suspect in bank surveillance photograph

step outside of apartment onto landing and then re-

turn inside, officers had probable cause to arrest man

in apartment on suspicion of robbery. [4] Arrest 35 68(9) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(9) k. Entry Without Warrant

Permissible. Most Cited Cases (Formerly 35k68.5(3)) To justify warrantless arrest at suspect's home, exi-

gent circumstances making it impossible or impracti-

cal to obtain warrant must be present; exigent cir-

cumstances exception encompasses situations such as

hot pursuit of suspect, risk of removal or destruction

of evidence, and danger to arresting officers or pub-

lic. [5] Arrest 35 68(10) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(10) k. Entry Without Warrant

Impermissible. Most Cited Cases (Formerly 35k68.5(4)) There were no exigent circumstances justifying war-

rantless arrest of defendant at his home; though offi-

cers had probable cause to believe that defendant had

been involved in robbery, there was no indication that

defendant was likely to remove or destroy evidence,

or that he represented any danger to officers or pub-

lic. [6] Arrest 35 68(13) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest

35k68(6) Intrusion or Entry 35k68(13) k. Consent. Most Cited

Cases (Formerly 35k68.5(7)) Suspect does not consent to being arrested within his

residence when his consent to entry into residence is

prompted by show of official authority. [7] Arrest 35 68(13) 35 Arrest 35II On Criminal Charges 35k68 Mode of Making Arrest 35k68(6) Intrusion or Entry 35k68(13) k. Consent. Most Cited

Cases (Formerly 35k68.5(7)) After officers, with weapons drawn, surrounded de-

fendant's apartment and told him to open door, de-

fendant's action of opening door, stepping back, and

placing his hands on his head could not be construed

to be implied consent to be arrested; those actions

merely indicated acquiescence to show of official

authority. [8] Criminal Law 110 519(8) 110 Criminal Law 110XVII Evidence 110XVII(T) Confessions 110k519 Voluntary Character in General 110k519(8) k. Confessions While in

Custody Illegally or Under Invalid Process. Most

Cited Cases Searches and Seizures 349 184 349 Searches and Seizures 349V Waiver and Consent 349k179 Validity of Consent 349k184 k. Custody, Restraint, or Deten-

tion Issues. Most Cited Cases Factors to be considered in determining whether con-

fession and consent to search are attenuated from

illegal arrest include temporal proximity of arrest and

confession, presence of intervening circumstances,

and purpose and flagrancy of officers' misconduct.

791 F.2d 1512

(Cite as: 791 F.2d 1512)


[9] Criminal Law 110 519(8) 110 Criminal Law 110XVII Evidence 110XVII(T) Confessions 110k519 Voluntary Character in General 110k519(8) k. Confessions While in

Custody Illegally or Under Invalid Process. Most

Cited Cases Defendant's confession was sufficiently attenuated

from his illegal arrest to be admissible against him;

confession began approximately 45 minutes after

arrest at place away from scene of arrest, defendant

initiated process by saying “Why don't we just get

this over with,” and defendant had twice been ad-

vised of his Miranda rights. *1513 Archibald J. Thomas, III, Jacksonville, Fla.,

for defendant-appellant. Thomas E. Morris and Alan Ceballos, Asst. U.S. At-

tys., Jacksonville, Fla., for plaintiff-appellee. Appeal from the United States District Court for the

Middle District of Florida. Before KRAVITCH and HATCHETT, Circuit

Judges, and TUTTLE, Senior Circuit Judge. HATCHETT, Circuit Judge: Appellant, Gary Lee Edmondson, appeals his convic-

tion on four counts of bank robbery and one count of

attempted bank robbery on the ground that the trial

court improperly admitted evidence which was the

product of an unreasonable search and seizure in vio-

lation of the fourth amendment. We affirm.

FACTS In the course of investigating a series of four bank

robberies occurring over a short period of time in the

Jacksonville, Florida area, the Federal Bureau of In-

vestigation (FBI) received information concerning an

aborted bank robbery which they suspected was at-

tempted by the same man responsible for the four

robberies. The FBI obtained the license plate number

of the car used in the aborted robbery and upon find-

ing that it was registered to a Kathy Graham, they

proceeded to her apartment for further investigation.

Graham's name was the only one registered with the

apartment manager as a resident of the apartment.

Witnesses on the premises identified the photograph

of the robber taken by a bank surveillance camera

from the first robbery as that of a male who had been

seen with Graham on several occasions. An agent

saw a man resembling the suspect in the bank surveil-

lance photograph step outside of the apartment onto a

landing to smoke a cigarette and return inside. *1514 After consulting an FBI legal advisor, the de-

cision was made to knock on the door in an attempt

to determine the identity of the person. The agents

did not have a search nor arrest warrant. With weap-

ons drawn, and with the vicinity in front of the

apartment surrounded, the agents knocked on the

door and saw Edmondson look out of the window. At

this point, an agent yelled, “FBI. Open the door.”

Edmondson opened the door, stepped back, and

placed his hands upon his head. In the apartment, the

agents arrested Edmondson, searched his person for

weapons, and read him Miranda rights. Edmondson

stated that he did not wish to make a statement. Sev-

eral items were seized. The FBI agents then took

Edmondson to their office to be photographed and

fingerprinted. Approximately forty-five minutes after his arrest, two

agents and a local officer entered the fingerprinting

room where Edmondson was waiting; they intended

to advise him of his rights again and to obtain his

consent to an interview. Before the agents could do

so, Edmondson interjected, “Why don't we just get

this over with.” The agents then stopped Edmondson

from talking and advised him of his Miranda rights

again, this time in writing. Edmondson read and

signed the form. Edmondson then confessed to the

four robberies and the attempted robbery. After ad-

mitting that he lived in the apartment in which he was

arrested, Edmondson signed a form consenting to a

search of the apartment and directed the agents to a

large amount of cash hidden in the apartment. An evidentiary hearing on appellant's motion to sup-

press was conducted prior to trial. The district court

entered an order granting in part and denying in part

Edmondson's motion to suppress. The district court

found that Edmondson's warrantless arrest was illegal

791 F.2d 1512

(Cite as: 791 F.2d 1512)


and that the evidence seized at the time of the arrest

was to be suppressed. The district court determined,

however, that Edmondson's confession and consent to

search were both sufficiently attenuated of any taint

from the illegal arrest. Thus, they were acts of

Edmondson's free will. Edmondson was found guilty

as charged on all counts.

DISCUSSION Edmondson urges that the district court was correct

in finding the agents' entry into his apartment to be in

violation of the rule announced in Payton v. New

York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980). He contends that his two confessions and the

evidence the agents obtained at the time of their

search of the apartment were all products of an un-

lawful search, were not sufficiently attenuated from

the illegal arrest, and should not have been admitted

at trial. The government argues that its search was

not illegal because it had probable cause to arrest

Edmondson, and that exigent circumstances justified

their entry into his home to effect the arrest, and al-

ternatively, because his actions at the time the agents

sought to enter the apartment amounted to a consent

to enter the apartment.

1. Arrest [1][2][3] A warrantless, nonconsensual entry into a

suspect's home to make a routine felony arrest is pre-

sumed to be unreasonable. Payton, 445 U.S. at 586-

87, 100 S.Ct. at 1380, 63 L.Ed.2d at 651. Such an

entry may be proper, however, where there is both

probable cause and exigent circumstances. Payton,

445 U.S. at 590, 100 S.Ct. at 1382, 63 L.Ed.2d at

653; United States v. Milian-Rodriguez, 759 F.2d

1558, 1564 (11th Cir.1985), cert. denied, 474 U.S.

845, 106 S.Ct. 135, 88 L.Ed.2d 112. The district

court found probable cause existed for the arrest. The

trial court's determinations at the suppression hearing

are reviewed as to findings of fact on a clearly erro-

neous standard. United States v. Arends, 776 F.2d

262, 264 (11th Cir.1985). All facts should be con-

strued in the light most favorable to the prevailing

party. Arends at 264. A finding of fact is clearly erro-

neous *1515 only when a reviewing court is left with

the definite and firm conviction that a mistake has

been committed. United States v. Duckett, 583 F.2d

1309, 1313 (5th Cir.1978). We find that the district

court's finding that there was probable cause for ar-

rest is not clearly erroneous. [4][5] A finding of probable cause alone, however,

does not justify a warrantless arrest at a suspect's

home. Exigent circumstances which make it impossi-

ble or impractical to obtain a warrant must also be

present. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct.

1969, 26 L.Ed.2d 409 (1970). The exigent circum-

stances exception encompasses situations such as hot

pursuit of a suspect, risk of removal or destruction of

evidence, and danger to the arresting officers or the

public. United States v. Satterfield, 743 F.2d 827,

843-44 (11th Cir.1984), cert. denied, --- U.S. ----,

105 S.Ct. 2362, 86 L.Ed.2d 262. We agree with the

district court that none of these situations is present in

this case and that the circumstances did not otherwise

make it impossible or even imprudent for the agents

to obtain a warrant before arresting Edmondson. [6][7] The government alternatively contends that the

warrantless arrest was valid because Edmondson

consented to the officers' entry into the apartment.

The government argues that because Edmondson

went to the door to open it after the FBI agent or-

dered him to do so, stepped back, and placed his

hands on his head, his actions amounted to an im-

plied consent to be arrested. We agree with the dis-

trict court that [w]hile defendant's submissive arrest posture may

indicate a guilty mind, as the government contends,

it also indicates an acquiescence to a show of offi-

cial authority. There is no direct evidence that de-

fendant actually saw the officers' drawn weapons.

However, defendant was aware there were FBI

agents at his door and at the bottom of the stairs.

The presence of a number of officers tends to sug-

gest an undertaking which is not entirely dependent

on the consent and cooperation of the suspect. We agree with the district court that Edmondson's

arrest was illegal and that the physical evidence

seized at the time of the arrest was unlawfully seized.

A suspect does not consent to being arrested within

his residence when his consent to the entry into his

residence is prompted by a show of official authority.

See United States v. Newbern, 731 F.2d 744, 748

791 F.2d 1512

(Cite as: 791 F.2d 1512)


(11th Cir.1984).

2. Confession and Consent to Search [8][9] Edmondson urges that his confession given at

the FBI office and his consent to search the apartment

were not acts of free will and thus were not purged of

the taint remaining from the illegal arrest. “The ques-

tion to be resolved when it is claimed that evidence

subsequently obtained is ‘tainted’ or is ‘fruit’ of a

prior illegality is whether the challenged evidence

was ‘come at by the exploitation of [the initial] ille-

gality or instead by means sufficiently distinguish-

able to be purged of the primary taint.’ ” Segura v.

United States, 468 U.S. 796, ----, 104 S.Ct. 3380,

3386, 82 L.Ed.2d 599, 608 (1984) (quoting in part

Wong Sun v. United States, 371 U.S. 471, 487-88, 83

S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963)). “The

question whether a confession is the product of a free

will under Wong Sun must be answered on the facts

of each case.” Brown v. Illinois, 422 U.S. 590, 603,

95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 427 (1975).

Several relevant factors to be considered in determin-

ing whether the confession and consent were attenu-

ated from the illegal arrest are: (1) the temporal prox-

imity of the arrest and confession; (2) the presence of

intervening circumstances; and (3) the purpose and

flagrancy of the officers' misconduct. Brown v. Illi-

nois, 422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45

L.Ed.2d at 427. We agree with the district court that

Edmondson's confession, which began approximately

forty-five *1516 minutes after his arrest, away from

the scene of the arrest, made after twice being ad-

vised of his Miranda rights, and initiated by him was

sufficiently attenuated. See Brown, 422 U.S. at 603-

04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427 (Miranda

warnings are an important factor in determining

whether a confession is obtained by exploitation of

an illegal arrest). Edmondson also contends that the district court erred

in drawing support from a recent Eleventh Circuit

decision which found a confession sufficiently an act

of free will to purge any taint resulting from the ar-

rest because his situation was distinguishable. Milian-

Rodriguez, 759 F.2d 1558 (11th Cir.1985). In Milian-

Rodriguez, the defendant was arrested at his home,

without a warrant, at 3 o'clock in the morning. The

court found that the arrest came within the exigent

circumstances exception, although it alternatively

stated that even if the arrest had been illegal, the sub-

sequent confession was still admissible. “Not only

did a full hour elapse between the arrest and the time

at which his statements were made but law enforce-

ment officers had removed [the defendant] from the

scene of the arrest, and had administered the Miranda

warnings on two separate occasions before the inter-

view ... began.” 759 F.2d at 1565. The court noted

that the defendant's inculpatory statements resulted

not from the circumstances of his arrest, but from his

belief that cooperation would be in his best interest. Milian-Rodriguez lends support to a finding that

Edmondson's confession and consent to search his

apartment should not have been suppressed. The first

two Brown factors in this case are nearly identical to

those in Milian-Rodriguez. As to the third factor, we

agree with the district court that the officers did not

act in intentional, flagrant disregard of appellant's

rights. In view of the circumstances as a whole, we

agree with the district court that Edmondson's confes-

sion and consent to search his apartment were

prompted not by any misconduct of the officers, but

by appellant's own guilty conscience and desire to be

caught, and were thus sufficiently purged of the taint

of the illegal arrest. Accordingly, the judgments are affirmed. AFFIRMED. C.A.11 (Fla.),1986. U.S. v. Edmondson 791 F.2d 1512 END OF DOCUMENT

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