CHAPTER ONE: STOP AND FRISK-LIMITED DETENTIONS, SEIZURES AND DETENTIONS
Stop and Frisk
The concept of a law enforcement officer-citizen encounter in which the individual is momentarily detained and, in some cases, subjected to a limited search is called a stop and frisk. Prior to Terry v. Ohio, 392 U.S. 1 (1968), this Chapter, police routinely conducted brief investigative encounters with citizens where facts indicated suspicious circumstances which required further investigation but did not permit an arrest. The location of the subject in a high crime area late at night, the experience of the police officer, attempts at flight upon sight of the officer, and acting strangely are all factors which may be used by an officer to conclude that a brief investigation is warranted. Some of these unusual situations prove to be readily explainable by the persons involved, but other police-citizen encounters dictate additional inquiry. A brief conversation and sometimes a limited search of the person could frequently dispel any legitimate curiosity, while other Terry searches produce evidence sufficient for probable cause for arrest. Out of the Court's decision in Terry emerged definite and generally clear guidelines for the conducting of the limited search known as the stop and frisk. Following the Terry decision, courts have adapted the stop and frisk rationale to situations involving automobiles and airport detentions.
The Terry Court held that wherever and whenever an officer observes unusual conduct which, in light of the officer's experience, leads the officer to reasonably conclude, based upon articulated facts, that criminal activity might be afoot, the officer is permitted to stop the person. A reasonable level of force may be used to effectuate the stop if the individual proves to be less than cooperative. The officer must convey to the subject that the person stopping the subject is a police officer. The subject may be questioned briefly concerning the unusual conduct, and, if the officer reasonably believes the person with whom he is dealing is armed and dangerous, te officer may conduct a limited search of the outer clothing. This search is designed to protect the officer and those in the immediate vicinity.
The stop and frisk can be legitimately conducted on less evidence than would be required for probable cause for arrest. Even though a stop and frisk requires only "reasonable suspicion" to justify this limited search, in situations where the "pat-down" reveals a lump or bulge which could reasonably be construed as a weapon, the officer may reach inside the clothing.
The facts which may give rise to an officer's reasonable basis to suspect criminal activity may be derived from the personal observations by the enforcement official, as proved to be the case in Terry v. Ohio, infra. In other contexts, as in Adams v. Williams, 407 U.S. 143 (1972), this Chapter, the
stop and frisk standard was met by virtue of information supplied by an informant combined with personal observations of the officer. In other situations, a person may fit the "drug courier profile," which, under the Terry rationale, allows for a brief initial stop and investigation. The legal requirement for a Terry stop and frisk may be met by information given to an officer by an informant.
The stop and frisk rationale for conducting limited searches gradually began a life of its own. It has been extended to allow, by implication, a short seizure of a person's luggage where there police have reasonable basis to suspect that criminal activity might exist. Where police seize luggage on less than probable cause, the limitation concerning the length of the detention of the personal articles has been construed to follow the same standards as the stop of a person. See Florida v. Royer, 460 U.S. 491 (1983), infra. In such a situation the initial stop and subsequent seizure must actually be of a temporary nature and exist no longer than reasonably necessary to effectuate the purpose. Where the seizure extends longer than reasonably required, the seizure may be declared as unreasonable and the evidence suppressed, see Note this Chapter, United States v. Place, 462 U.S. 696, 103 S.Ct.2637 (1983).
The Court extended the stop and frisk rationale to cover the situation where police have lawfully detained anautomobile and possess an articulate fear that the occupant might obtain a weapon while searching for his driver's license, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983),infra, Note this Chapter. There the Court sanctioned a search of the interior of the auto prior to Long's reentry to obtain a driver's license.
Judicial Approval for Stop and Frisk Searches
TERRY v. OHIO, Supreme Court of the United States (1968)392 U.S. 1, 88 S.Ct. 1868
FACTS:
While on routine, non-uniformed patrol, detective Martin McFadden of the Cleveland Police Department observed two men acting in a strange fashion. One of the men under McFadden's view repeatedly walked part way down one block, peered in a store window, walked a bit further, and then retraced his step to confer with the second gentleman. The second man repeated the conduct of the first and then returned for a conference. This conduct repeated several times until a third man joined them.
Officer McFadden, based on his 35 years as a police detective, believed that the men were "casing a job, a stick-up" and that the conduct warranted further investigation. He approached the three men, made his identity known to the men, and asked them for their names. When the three mumbled inaudible replies, McFadden grabbed Terry and spun him around so that McFadden could view one Chilton and another gentleman while he conducted a limited search of Terry.
The "pat-down" search revealed to McFadden the fact that Terry possessed a pistol in an inside pocket of an overcoat. Prior to removing Terry's overcoat, McFadden patted only the outer garments and did not reach inside until he felt the "weapon-like" lump. He ordered all three men inside the nearest store where a further "pat-down" of the three produced one more weapon.
After he had been charged with carrying a concealed weapon, Terry filed a motion to suppress the evidence uncovered by McFadden. He alleged that Officer
McFadden had no probable cause for arrest and, therefore, the search of his person exceeded the bounds permitted by the Fourth Amendment as applied to the states.
The pretrial motion to suppress was denied by the trial court; Terry elected a bench trial; and he was convicted. The Court of Appeals affirmed and the Supreme Court of Ohio declined to hear the case. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where a police officer observes unusual conduct which leads him to reasonably conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous, where he identified himself as an officer, and where his fear is not dispelled, may the officer conduct a limited "pat-down" of the subject's outer clothing in an attempt to discover weapons?
HELD: Yes
RATIONALE:
Mr. Chief Justice WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.
* * *I
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." This inestimable right of personal security belongs as much to the citizen on the streets of our great cities as to the homeowner closeted in his study to dispose of his secret affairs.
* * *
Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the streets in Cleveland. (Citations omitted.) The question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity - issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to "stop and frisk" - as it is sometimes euphemistically termed - suspicious persons.
On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need
of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a "stop" and an "arrest" (or a "seizure" of a person), and between a "frisk" and a "search." Thus, it is argued, the police should be allowed to "stop" a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal "arrest," and a full incident "search" of the person. This scene is justified in part upon the notion that a "stop" and a "frisk" amount to a mere "minor inconvenience and petty indignity," which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer's suspicion.
On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. It is contended with some force that there is not - and cannot be - a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the court in the compulsion inherent in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial nterference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in "the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369 1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation's cities.
* * *II
Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden "seized" Terry and whether and when he conducted a "search." There is some suggestion in the use of such terms as "stop" and "frisk" that such police conduct is outside the the purview of the Fourth Amendment because neither action rises to the level of a "search" or "seizure" within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime - "arrests" in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
* * *
In this case there can be no question, then, that Officer McFadden "seized" petitioner and subjected him to a "search" of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner's personal security as he did. And in determining whether the seizure and search were "unreasonable" our inquiry is a dual one - whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
* * *IV
We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a "stick-up." We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden's hypothesis that these men were contemplating a day-light robbery - which, it is reasonable to assume, would be likely to involve the use of weapons - and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reasons to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker's store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tampered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited step to do so.
* * *
. . . The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.
The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt a weapons, and then he merely reached for and removed the guns. He never did invade . . . [the third gentleman's] person beyond the outer surfaces of his clothes, since he discovered nothing in his pat down which might have been weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.
V
We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe the petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous; wherein the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may be properly introduced in evidence against the person from whom they were taken.
Affirmed.
Notes
1. The Court approved the stop or seizure of individuals whose conduct appears suspicious. The brief encounter between the officer and a citizen may not escalate to the "pat down" where the subject gives an objectively reasonable explanation of the suspicious conduct. Only where the officer believes that the person may be armed an dangerous may the frisk be conducted.
2. The Supreme Court decided Sibron v. New York, 392 U.S. 40 (1968), the same day as Terry v. Ohio. The Sibron case illustrates a situation which, at first blush, seems quite similar to the Terry case.
A New York patrolman, Martin, had Sibron, a suspected narcotics user, under surveillance from 4 p.m. to midnight on March 9, 1965. Although, Officer Martin repeatedly observed Sibron speak with known narcotic addicts, he neither overheard any of the conversations nor did he observe any objects pass between Sibron and any other person.
During the latter part of the evening, Sibron entered a restaurant occupied by additional known narcotic addicts. Again, there appeared to be no drug transaction between Sibron and anyone. Officer Martin approached him and requested that he step outside. Martin told Sibron, "You know what I'm after." Sibron said something in an inaudible voice and began to reach into his jacket pocket. Instantly, Officer Martin thrust his hand inside the same pocket. Together they pulled several packets of heroin from Sibron's jacket. According to Martin's testimony, at no time did the patrolman indicate that he thought Sibron was armed and dangerous or that he felt Sibron was going for a weapon.
In the Supreme Court of the United States, Sibron ultimately prevailed with his contention that the officer's search of his person was unreasonable under the circumstances. The distinction between the cases turns on the issue of whether the officer could have developed a reason to suspect Sibron of criminal activity and that Sibron was armed and dangerous. No evidence pointed to any criminal activity by Sibron and there existed no reason to believe that he was armed. These factors are in sharp contrast to Terry.
3. In Brown v. Texas, 443 U.S. 47 (1979), police officers observed Brown and another person walk away from each other in an area where drugs were known to be bought and sold. However, police were unable to support their conclusion that the two men appeared to be involved in suspicious activity. The Court held that merely being in an area of significant drug activity, looking "suspicious," and not being known tothe officers did not justify a "stop and frisk" by police.
Motor Vehicles and the Stop and Frisk Doctrine
ADAMS V. WILLIAMS, Supreme Court of the United States (1972)407 U.S. 143, 92 S.Ct. 1921
FACTS:
Early one morning, Sgt. John Connolly was alone on routine patrol in a high-crime area of Bridgeport, Connecticut. A known informant spoke with the officer and stated that an individual parked in a nearby automobile was carrying narcotics and possessed a gun at his waist.
Connolly approached the subject, tapped on his window, and asked respondent Williams to open the door. Instead, Williams rolled the window down whereupon Connolly reached in and removed a pistol located where the informant had stated. A search incident to arrest disclosed a quantity of heroin on Williams' person and additional weapons in the car.
Defendant-Respondent claimed that his Fourth Amendment rights as set forth in Terry v. Ohio had been violated on the theory that absent a more reliable informant or corroboration of the tip, the conduct of Sgt. Connolly was unreasonable. The trial court rejected Williams' allegations and he was convicted of illegal possession of a handgun and of possession of heroin. The trial court approved of this "stop and frisk" initiated by the tip of an informant and the unresponsive conduct of the subject while he was seated in his automobile.
Williams exhausted his state remedies without success and was denied certiorari by the Supreme Court of the United States. The Court of Appeals for the Second Circuit, on a rehearing, en banc, granted the requested relief. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Consistent with the doctrine of Terry v. Ohio, may police conduct a limited search of a person seated in an automobile where an informant had communicated to a law enforcement officer that the subject was armed and possessed narcotics?
HELD: Yes.
RATIONALE:
Mr. Justice REHNQUIST delivered the opinion of the Court.
Respondent contends that the initial seizure of his pistol, upon which rested the later search and seizure of other weapons and narcotics, was justified by the informant's tip to Sgt. Connolly. He claims that absent a more reliable informant, or some corroboration of the tip, the policeman's actions were unreasonable under the standards set forth in Terry v. Ohio, supra.
* * *
In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," he may conduct a limited protective search for concealed weapons. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus frisk for weapons might be equally necessary and reasonable whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.
Applying these principles to the principles case we believe that Sgt. Connolly acted justifiably in responding to his informant's tip. The informant was known to him personally and had provided him with information in the past. This is a stronger case that obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant herself might have been subject to immediate arrest for making a false complaint had Sgt. Connolly's investigation proven the tip incorrect (for false reporting of a crime). Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, the information carried enough indicia of reliability to justify the officer's forcible stop of Williams.
In reaching this conclusion, we reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. Informants' tips, like all other clues and evidence comin to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations - for example, when the victim of a street crime seeks immediate police aid and gives a specific impending crime - the subtleties of the hearsay rule should not thwart an appropriate police response.
While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety. When Williams rolled down his window, rather than complying with the policeman's request to step out of the car so that his movements could more easily be seen, the revolver allegedly at Williams' waist became an even greater threat. Under these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable. The loaded gun seized as a result of this intrusion was therefore admissible at Williams' trial. Terry v. Ohio.
Once Sgt. Connolly had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon. Probable cause to arrest depends "upon whether, at the moment the arrest was made . . . the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense." Beck v. Ohio.
* * *
. . . Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful. The fruits of the search were therefore properly admitted at Williams' trial.
* * *
Mr. Justice BRENNAN, dissenting.
The crucial question on which this case turns, as the Court concedes, is whether, there being no contention that Williams acted voluntarily in rolling down the window of his car, the State had shown sufficient cause to justify Officer Connolly's "forcible" stop. I would affirm, believing, for the following reasons stated by Judge, now Chief Judge, Friendly, 436 F.2d at 38-39, that the State did not make that showing: I would not find the combination of Officer Connolly's almost meaningless observation and the tip in this case to be sufficient justification for the intrusion. The tip suffered from a threefold defect, with each fold compounding the others. The informer was unnamed, he was not shown to have been reliable with respect to guns or narcotics, and he gave no information which demonstrated personal knowledge or - what is worse - could not readily have been manufactured by the officer after the event. To my mind, it has not been sufficiently recognized that the difference between this sort of tip and the accurate prediction of an unusual event is an important on the latter score as on the former.
Notes
1. In Michigan v. Long, 463 U.S. 1032, (1983), officers observed erratic operation of a motor vehicle; watched it crash; and investigated the aftermath. The Court approved a Terry type search of the interior of the automobile, limited to the areas where a weapon might be hidden, in situations where the officer has a reasonable belief that weapons might exist over which the suspect could gain control.
2. There seen to exist three types of police-citizen encounters. The first consists of situations in which the officer merely addresses the citizen with an appropriate greeting such as "How is your day going?" The Fourth Amendment is not implicated in such an exchange. In the second situation, like the Terry stop and frisk encounter, the officer must have reasonable basis to suspect that criminal activity may be afoot. The final situation involves a full-custody arrest for which the officer must possess traditional probable cause.
3. In situations in which the officer accidentally discovers evidence of a crime during a stop and frisk or evidence falls from the suspect, the officer is not required to look the other way. Such evidence is fully admissible so long as the officer had an initial right to stop the individual. Frequently, during a routine stop and frisk, accidentally discovered evidence which indicates criminality creates probable cause for arrest. See Chapter 8, for a discussion of the Plain View Doctrine.
4. What about the situation where an officer is "frisking" for weapons and feels an object which clearly transgresses the law? In Minnesota v. Dickerson, U.S. , 61 LW 4544 (1993), in principle, the Court expanded the scope of a Terry stop and frisk by permitting the officer to reach inside the clothing of a detainee where the officer has detected by feel, an object which was believed to be contraband. In Dickerson, the object had been manipulated by the officer who had felt a small lump and determined that it was crack cocaine in cellophane. Had the officer merely felt an object whose identity was readily apparent, the pat down would have been permissible; manipulating the object was a greater search than allowed by Terry. In Dickerson, the officer went beyond the allowable search allowed by Terry and the evidence should have been suppressed.
However, Dickerson recognized a new area of seizable property under Terry which did not exist previously. This expansion of Terry has been variously referred to as the "plain touch" or the "plain feel" doctrine.
Dickerson will spark additional litigation to determine what a reasonable officer could feel or identify as contraband by a pat down of outer clothing.
Stop of Moving Vehicles under Stop and Frisk Doctrine
ALABAMA v. WHITESupreme Court of the United States (1990)496 U.S. , 110 S.Ct. 2412
FACTS:
An anonymous telephone caller contacted a local Alabama police officer to render information that respondent would shortly be leaving a particularly described apartment building in a brown Plymouth station wagon with a broken right rear taillight lens. The informant further related that the driver, respondent White, would be carrying about an ounce of cocaine in a brown attache' case which she would be delivering to a named hotel. The officer observed the woman leave the apartment building, get into the car matching the informant's description, and proceed on a road leading directly to the named hotel.
Police stopped the vehicle short of the motel, informed respondent that she had been stopped due to suspicion that she possessed illegal drugs. When the officers requested permission to look for cocaine, respondent White consented. The search of the attache' case revealed marijuana and a search during routine booking procedures disclosed a small quantity of cocaine in her purse.
Following a guilty plea with a reservation to contest the validity of the stop of her vehicle, the Alabama appellate court ruled that the officers did not have the reasonable suspicion required under Terryv.Ohio, 392 U.S. 1 (1968), to make the initial stop. The Supreme Court of the United States granted certiorari following a refusal to hear the case by the Supreme Court of Alabama.
PROCEDURAL QUESTION:
Does an anonymous telephone tip, partially corroborated by independent police work, produce "reasonable suspicion" sufficient to make an investigatory stop of a person in an automobile?
HELD: Yes.
RATIONALE:
JUSTICE WHITE delivered the opinion of the Court.
Adams v. Williams, 407 U.S. 143 (1972), sustained a Terry stop and frisk undertaken on the basis of a tip given in person by a known informant, who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient "indicia of reliability" to justify a forcible stop. 407 U.S., at 147. We did not address the issue of anonymous tips in Adams, except to say that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip," id., at 146.
Illinois v. Gates, 462 U.S. 213 (1983), dealt with an anonymous tip in the probable cause context. The Court there abandoned the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. UnitedStates, 393 U.S. 410 (1969), in favor of a "totality of circumstances" approach to determining whether an informant's tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli - an informant's "veracity," "reliability," and "basis of knowledge" remain "highly relevant in determining the value of his report." 462 U.S., at 230. These factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.
The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant's basisof knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable." Id., at 237.
* * *
As there was in Gates, however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in Gates, but the required degree of suspicion was likewise not as high.
* * *
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
* * *
Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality of circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment.
It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what the time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, id., at 5-6. Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent's departure from the building was within the time frame predicted by the caller.
* * *
The Court's opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. 462 U.S., at 244. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.
We think it is also important that, as in Gates, "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Gates, 462 U.S., at 245. The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have "predicted" that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's futurebehavior, because it demonstrated inside information - a special familiarity with respondent's affairs.
* * *
When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
Although it is a close case, we conclude that under the totality of circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent's car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama and remand for further proceedings not inconsistent with this opinion.
[Reversed.]
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Millions of people leave their apartments at about the same time every day carrying an attache' case and heading for a destination known to their neighbors. Usually, however, the neighbors do not know what the briefcase contains. An anonymous neighbor's prediction about somebody's time of departure and probable destination is anything but a reliable basis for assuming that the commuter is in possession of an illegal substance - particularly when the person is not even carrying the attache' case described by the tipster.
Notes
1. Contrast this case with the level of proof needed to develop probable cause for a search or arrest. See Chapter 2, the case of Draper v. United States, where the informants' information was significantly corroborated by independent police observations to produce probable cause for an arrest. The independent corroboration necessary to mature reasonable basis to suspect criminal activity [the Terry standard] is of a lesser level than the corroboration required for probable cause to arrest.
Evolution of Stop and Frisk Doctrine to Drug Courier Profile
FLORIDA v. ROYER, Supreme Court of the United States (1983)460 U.S. 491, 103 S.Ct. 1319
FACTS:
Using a "drug courier profile" to isolate Mark Royer from other passengers planning to fly from Miami International Airport to New York's La Guardia Airport, two detectives approached Mr. Royer and asked to see his airline ticket and other identification. When the ticket proved to carry a name different from the name on Mr. Royer's driver's license and after listening to a brief explanation which did not satisfy the detectives, they suggested that Royer accompany them to a small room. At this point the detectives told Mr. Royer that they suspected that he was transporting narcotics.
During the walk to the small room, the airline ticket and driver's license remained in the custody of the detectives. Royer appeared to voluntarily walk with the officers to the room, but did not orally consent. While Royer remained in the room one of the detectives, without the consent of Royer used his luggage claim checks to obtain Mr. Royer's luggage from the airline.
When asked if he would consent to a search of the luggage, Mark Royer produced a key and unlocked one suitcase but did not open it. One detective, without any oral consent, opened the luggage which did contain a quantity of drugs. When asked if the detectives could open the second suitcase, Royer explained that he did not know the combination. He answered that he did not object if the detective forcibly opened the second item of luggage. More marijuana was discovered in this suitcase.
Prior to his trial for possession of marijuana, Royer unsuccessfully prosecuted a motion to suppress. He pled no contest to the drug possession charge, but reserved his right to appeal the denial of his motion to suppress.
The District Court of Appeal, Third District, ultimately determined that the search and seizure constituted a violation of the principles of Terry v. Ohio, 397 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, 44 Ohio Ops 2d 383. The United States Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Where government officials detain a subject, reove him to an interrogation room, and retrieve his luggage from an airline on the basis that he fits a "drug courier profile," does such conduct exceed the permissible scope of a stop and frisk?
HELD: Yes.
RATIONALE:
Mr. Justice WHITE announced the judgment of the Court and delivered an opinion in which Justices MARSHAL, POWELL and STEVENS joined.
* * *III
The State proffers three reasons for holding that when Royer consented to the search of his luggage, he was not being illegally detained. First, it is submitted that the entire encounter as consensual and hence Royer was not being held against his will at all. We find this submission untenable. Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that "a reasonable person would have believed he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L.Ed.2d 497, 100 S.Ct. 1870 (Opinion of Stewart, J.).
Second, the State submits that if Royer was seized, there existed reasonable, articulated suspicion to justify a temporary detention and that the limits of a Terry-type stop were never exceeded. We agree with the State that when the officers discovered that Royer was travelling under an assumed name, this fact, and the facts already known to the officers - paying cash for a one-way ticket, the mode of checking the two bags, and Royer's appearance and conduct in general - were adequate grounds for suspecting Royer of carrying drugs and for temporarily detaining him and his luggage while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention. We also agree that had Royer voluntarily consented to the search . . . [of his checked baggage], the products of the search would be admissible against him. We have concluded, however, that at the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.
* * *
What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions. The officers had Royer's ticket, they had his identification, and they had seized his luggage. Royer was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained. At least as of that moment, any consensual aspects of the encounter had evaporated, and we cannot fault the Florida Court of Appeal for concluding that Terry v. Ohio and the cases following it did not justify the restraint to which Royer was then subjected. As a practical matter, Royer was under arrest. Consistent with this conclusion, the State conceded in the Florida courts that Royer would not have been free to leave the interrogation room had he asked to do so.
* * *
We also think that the officers' conduct was more intrusive than necessary to effectuate an investigative detention otherwise authorized by the Terry line of cases. First, by returning his ticket and driver's license, and informing him that he was free to go if he so desired, the officers may have obviated any claim that the encounter was anything but a consensual matter from the start to finish. Second, there are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another
during an investigatory detention, such as from an airport concourse to a more private area. Cf.Pennsylvania v. Mimms, 434 U.S. 106, 109-111, 54 L.Ed.2d 331, 98 S.Ct. 330 (1977) (per curiam). There is no indication in this case that such reasons prompted the officers to transfer the site of the encounter from the concourse to the interrogation room. It appears, rather, that the primary interest of the officers was not in having an extended conversation with Royer but in the contents of his luggage, a matter which the officers did not pursue orally with Royer until after the encounter was relocated to the police room. The record does not reflect any facts which would support a finding that the legitimate law enforcement purposes which justified the detention in the first instance were furthered by removing Royer to the police room prior to the officer's attempt to gain his consent to a search of his luggage. As we have noted, had Royer consented to a search on the spot, the search could have been conducted with Royer present in the area where the bags were retrieved by Officer Johnson and any evidence recovered would have been admissible against him. If the search proved negative, Royer would have been free to go much earlier and with less likelihood of missing his flight, which in itself can be a very serious matter in a variety of circumstances.
Third, the State has not touched on the question whether it would have been feasible to investigate the contents of Royer's bags in a more expeditious way. The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage. (Footnote omitted.) There is no indication here that this means was not feasible and available. If it had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out. Indeed, it may be that no detention at all would have been necessary. A negative result would have freed Royer in short order; a positive result would have resulted in his justifiable arrest on probable cause.
* * *IV
The State's third and final argument is that Royer was not being illegally held when he gave his consent because there was probable cause to arrest him at that time. . . . We agree with the Florida Court of Appeal, however, that probable cause to arrest Royer did not exist at the time he consented to the search of his luggage. The facts are that a nervous young man with two American Tourister bags paid cash for an airline ticket to a "target city." These facts led to inquiry which in turn revealed that the ticket had been bought under an assumed name. The proffered explanation did not satisfy the officers. We cannot agree with the State, if this is its position, that every nervous young man paying cash for a ticket to New York City under an assumed name and carrying two heavy American Tourister bags may be arrested and held to answer for a serious felony charge.
V
Because we affirm the Florida Court of Appeal's conclusion that Royer was being illegally detained when he consented to the search of his luggage, we agree that the consent was tainted by the illegality and was ineffective to justify the search. The judgment of the Florida Court of Appeal is accordingly affirmed.
Mr. Justice POWELL, concurring.
I join the plurality opinion. This is an airport "stop for questioning" case similar in its general setting to that before us in United States v. Mendenhall, 446 U.S. 544, 64 L.Ed.2d 497, 100 S.Ct. 1870 (1980). (Footnote omitted.) The plurality opinion today has discussed helpfully the principles applicable to investigative stops for questioning. Since I was the author of one of the opinions in Mendenhall, id., at 560, 64 L.Ed.2d 497, 100 S.Ct. 1870, I write briefly to repeat that the public has a compelling interest in identifying by all lawful means those who traffic in illicit drugs for personal profit. As the plurality opinion emphasizes, ante, at , 75 L.Ed.2d , the facts and circumstances of investigative stops necessarily vary. In view of the extent to which air transportation is used in the drug traffic, the fact that the stop at issue is made by trained officers in an airport warrants special consideration. (Footnote omitted.)
This case, however, differs strikingly from Mendenhall in the circumstances following the lawful initial questioning on the request that the suspect accompany the officers to a more private place. Royer then found himself in a small, windowless room - described as a "large closet" - alone with two officers who, without his consent, already had obtained possession of his checked luggage. In addition, they had retained his driver's license and airline ticket. Neither the evidence in this case nor common sense suggests that Royer was free to walk away. I agree with the plurality that as a practical matter he then was under arrest, and his surrender of the luggage key to the officers cannot be viewed as consensual.
Notes
1. The principal case clearly concerns Terry-type legal problems such as the appropriate length of a detention. The state attempted to justify the search based on the theory that Royer consented to a search when he unlocked one suitcase while inside the airport security room. Since consent, inter alia, must be voluntarily given, under the circumstances, did Royer grant a voluntary consent? Using the "totality of the circumstances" a test for consent announced in Schneckloth v. Bustamonte, Chapter 5, Consent Searches, did Royer consent to a search of either piece of luggage? Do you agree with the Court and Justice Powell? Why or why not?
2. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983), following an initial, but brief, encounter with the law enforcement officers in one airport, officers at the destination airport requested permission to search Place's luggage. Upon his refusal to grant consent, his luggage was removed to a secure area to await a warrant and to subject it to a "sniff test" by a trained dog. An hour and a half had elapsed by the time the warrant arrived and was executed.
The cocaine discovered was admitted against Place, but the Court of Appeal reversed on the ground that the limits of a Terry investigative stop had been exceeded. The Supreme Court affirmed the reversal of the conviction. The Court held that where an officer reasonably believes that a person carries luggage which contains narcotics, a brief seizure of the luggage may be justified under the dictates of Terry. Where police seize personal articles, the limitations applicable to investigative detentions of persons apply. Thus, in the circumstances applicable to Place, the seizure became unreasonable when the duration of the seizure consumed an hour and a half.
Additionally, the Court noted that a "sniff test" is not a search under the Fourth Amendment.
3. Contrast Place with United States v. Montoya de Hernandez, 473 U.S. 531 (1985) where a female air passenger from Columbia met the drug courier profile for an alimentary canal smuggler. The Court approved a Terry detention for twenty-seven hours to allow nature to "take its course." In the interim, the female was offered an x-ray examination, which she declined. A court order facilitated a rectal examination which was performed a day after the initial landing from Columbia. The discovery of narcotics within her rectum resulted in a probable cause arrest of an uncomfortable drug smuggler.
4. In another "drug courier profile" case, United States v. Sokolow, 490 U.S. 1, (1989), Drug Enforcement Administration agents stopped Sokolow following his arrival in Hawaii from Miami, Florida. Sokolow had paid for two round trip tickets from Hawaii to Miami with cash, traveled under an alias, used a different name on his home telephone, stayed in Miami only 48 hours, appeared nervous, and checked no luggage. The Court approved a Terry-type stop and removal to a DEA area so that a drug dog could sniff the carry on luggage. A probable cause arrest followed a positive indication by the canine that drugs were present in one of the bags.
What Constitutes a "Stop" under the Stop and Frisk Doctrine
MICHIGAN v. CHESTERNUTSupreme Court of the United States (1988)486 U.S. 567, 108 S.Ct. 1975
FACTS:
While four officers were riding in a marked police cruiser, they observed respondent Michael Chesternut standing on a street corner. A man alighted from an automobile and approached the respondent. Chesternut began to run when the police car arrived at his corner of the intersection. When the police drove their cruiser around the corner and caught up with respondent, he began to litter the street with a number of plastic packets. One officer left the cruiser to examine the contents of the packets while the cruiser continued to motor alongside the respondent. The officer suspected that since the pills within the packets appeared to contain codeine, an arrest of respondent would be appropriate. A search incident to arrest revealed an additional packet of pills, a packet of heroin, and a hypodermic needle.
At a preliminary hearing, the magistrate dismissed all charges on the theory that Chesternut had been unlawfully seized in violation of the Fourth Amendment. According to the magistrate, mere flight upon observing a police officer implicated Fourth Amendment protections and police seizure under such circumstances was unjustified. The Michigan Court of Appeals affirmed the magistrate's decision under the authority of Terry v. Ohio, 392 U.S. 1 (1968), on the theory that particularized suspicion for criminal activity did not exist under the circumstances of this case. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where a person begins to run at the sight of police officers and discards packets, does such investigatory pursuit by police constitute a seizure under the stop and frisk doctrine?
HELD: No.
RATIONALE:
Justice BLACKMUN delivered the opinion of the Court.
B
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court noted:
"Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Id., at 19, n. 16, 88 S.Ct., at 1879, n. 16.
A decade later in United States v. Mendenhall, Justice Stewart, writing for himself and then JUSTICE REHNQUIST, first transposed this analysis into a test to be applied in determining whether "a person has been `seized' within the meaning of the Fourth Amendment." 446 U.S., at 554, 100 S.Ct., at 1877. The test provides that the police can be said to have seized an individual "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Ibid. The Court has since embraced this test. See INS v. Delgado, 466 U.S., at 215, 104 S.Ct., at 1762. [Other citations omitted.]
The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to "leave" will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.
C
Applying the Court's test to the facts of this case, we conclude that respondent was not seized by the police before he discarded the packets containing the controlled substance. Although Officer Peltier referred to the police conduct as a "chase," and the magistrate who originally dismissed the complaint was impressed by this description, the characterization is not enough, standing alone, to implicate Fourth Amendment protections. Contrary to respondent's assertion that a chase necessarily communicates that detention is intended and imminent, Brief for Respondent 9, the police conduct involve here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent's freedom of movement.
III
Because respondent was not unlawfully seized during the initial police pursuit, we conclude that charges against him were improperly dismissed. Accordingly, we reverse the judgment of the Michigan Court of Appeals, and remand this case to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice KENNEDY, with whom Justice SCALIA joins, concurring.
It is no bold step to conclude, as the Court does, that the evidence should have been admitted, for respondent's unprovoked flight gave the police ample cause to stop him.
* * *
The case before us presented an opportunity to consider whether even an unmistakable show of authority can result in the seizure of a person who attempts to elude apprehension and who discloses contraband or other incriminating evidence before he is ultimately detained. It is at least plausible to say that whether or not the officers' conduct communicates to a person a reasonable belief that they intend to apprehend him, such conduct does not implicate Fourth Amendment protections until it achieves a restraining effect. The Court's opinion does not foreclose this holding, and I concur.
Notes
1. A person has been seized under the Terry standard when the subject reasonably concludes that the police would not permit the individual to leave. In the instant case, the Chesternut not only felt free to leave; he appeared to be motivated to leave at the sight of police officers. Could the officers have cited Chesternut for littering or a similar offense to justify the stop even if they were initially unsure of the contents of the containers? Would this have avoided the Terry issue of whether a seizure occurred prior to believing that reasonable basis to suspect criminal activity existed?
2. A person has not been seized for Fourth Amendment purposes merely because a police officer approaches a person and asks a few questions. In California v. Hodari D., 499 U.S. (1991), the defendant juvenile took flight after observing police officers coming toward him. While running away, the juvenile tossed some crack cocaine and later alleged that he had been seized at the point of his initial flight. The Supreme Court held that he had not been seized until an officer later tackled him on the public street. Words alone are not enough in some cases to constitute a seizure and in other cases, physical restraint is not necessary to constitute a seizure.
3. Justices Kennedy and Scalia observed that flight on sight of a police officer grants police probable cause to stop an individual. Should unprovoked flight give rise to a reasonable basis to suspect criminal activity? Why or why not? Could some people have legitimate reasons to flee when seeing the police?