United States v. Sharpe
Opinion of the Court
delivered the opinion of the Court.
We granted certiorari to decide whether an individual reasonably suspected of engaging in criminal activity may be
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On the morning of June 9, 1978, Agent Cooke of the Drug Enforcement Administration (DEA) was on patrol in an unmarked vehicle on a coastal road near Sunset Beach, North Carolina, an area under surveillance for suspected drug trafficking. At approximately 6:30 a. m., Cooke noticed a blue pickup truck with an attached camper shell traveling on the highway in tandem with a blue Pontiac Bonneville. Respondent Savage was driving the pickup, and respondent Sharpe was driving the Pontiac. The Pontiac also carried a passenger, Davis, the charges against whom were later dropped. Observing that the truck was riding low in the rear and that the camper did not bounce or sway appreciably when the truck drove over bumps or around curves, Agent Cooke concluded that it was heavily loaded. A quilted material covered the rear and side windows of the camper.
Cooke’s suspicions were sufficiently aroused to follow the two vehicles for approximately 20 miles as they proceeded south into South Carolina. He then decided to make an “investigative stop” and radioed the State Highway Patrol for assistance. Officer Thrasher, driving a marked patrol car, responded to the call. Almost immediately after Thrasher caught up with the procession, the Pontiac and the pickup turned off the highway and onto a campground road.
At this point, all four vehicles were in the middle lane of the three right-hand lanes of the highway. Agent Cooke asked Officer Thrasher to signal both vehicles to stop. Thrasher pulled alongside the Pontiac, which was in the lead, turned on his flashing light, and motioned for the driver of the Pontiac to stop. As Sharpe moved the Pontiac into the right lane, the pickup truck cut between the Pontiac and Thrasher’s patrol car, nearly hitting the patrol car, and continued down the highway. Thrasher pursued the truck while Cooke pulled up behind the Pontiac.
Cooke approached the Pontiac and identified himself. He requested identification, and Sharpe produced a Georgia driver’s license bearing the name of Raymond J. Pavlo-vich. Cooke then attempted to radio Thrasher to determine whether he had been successful in stopping the pickup truck, but he was unable to make contact for several minutes, apparently because Thrasher was not in his patrol car. Cooke radioed the local police for assistance, and two officers from the Myrtle Beach Police Department arrived about 10 minutes later. Asking the two officers to “maintain the situation,” Cooke left to join Thrasher.
In the meantime, Thrasher had stopped the pickup truck about one-half mile down the road. After stopping the truck, Thrasher had approached it with his revolver drawn, ordered the driver, Savage, to get out and assume a “spread eagled” position against the side of the truck, and patted him down. Thrasher then holstered his gun and asked Savage for his driver’s license and the truck’s vehicle registration. Savage produced his own Florida driver’s license and a bill of sale for the truck bearing the name of Pavlovich. In response to questions from Thrasher concerning the ownership of the truck, Savage said that the truck belonged to a friend and that he was taking it to have its shock absorbers repaired. When Thrasher told Savage that he would be held
Agent Cooke arrived at the scene approximately 15 minutes after the truck had been stopped. Thrasher handed Cooke Savage’s license and the bill of sale for the truck; Cooke noted that the bill of sale bore the same name as Sharpe’s license. Cooke identified himself to Savage as a DEA agent and said that he thought the truck was loaded with marihuana. Cooke twice sought permission to search the camper, but Savage declined to give it, explaining that he was not the owner of the truck. Cooke then stepped on the rear of the truck and, observing that it did not sink any lower, confirmed his suspicion that it was probably overloaded. He put his nose against the rear window, which was covered from the inside, and reported that he could smell marihuana. Without seeking Savage’s permission, Cooke removed the keys from the ignition, opened the rear of the camper, and observed a large number of burlap-wrapped bales resembling bales of marihuana that Cooke had seen in previous investigations. Agent Cooke then placed Savage under arrest and left him with Thrasher.
Cooke returned to the Pontiac and arrested Sharpe and Davis. Approximately 30 to 40 minutes had elapsed between the time Cooke stopped the Pontiac and the time he returned to arrest Sharpe and Davis. Cooke assembled the various parties and vehicles and led them to the Myrtle Beach police station. That evening, DEA agents took the truck to the Federal Building in Charleston, South Carolina. Several days later, Cooke supervised the unloading of the truck, which contained 43 bales weighing a total of 2,629 pounds. Acting without a search warrant, Cooke had eight randomly selected bales opened and sampled. Chemical tests showed that the samples were marihuana.
Sharpe and Savage were charged with possession of a controlled substance with intent to distribute it in violation of 21 U. S. C. § 841(a)(1) and 18 U. S. C. §2. The United States District Court for the District of South Carolina denied respondents’ motion to suppress the contraband, and respondents were convicted.
A divided panel of the Court of Appeals for the Fourth Circuit reversed the convictions. Sharpe v. United States, 660 F. 2d 967 (1981). The majority assumed that Cooke “had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marijuana trafficking when he and Thrasher stopped the Pontiac and the truck.” Id., at 970. But the court held the investigative stops unlawful because they “failed to meet the requirement of brevity” thought to govern detentions on less than probable cause. Ibid. Basing its decision solely on the duration of the respondents’ detentions, the majority concluded that “the length of the detentions effectively transformed them into de facto arrests without bases in probable cause, unreasonable seizures under the Fourth Amendment.” Ibid. The majority then determined that the samples of marihuana should have been suppressed as the fruit of respondents’ unlawful seizures. Id., at 971. As an:alternative basis for its decision, the majority held that the warrantless search of the bales taken from the pickup violated Robbins v. California, 453 U. S. 420 (1981). Judge Russell dissented as to both grounds of the majority’s decision.
The Government petitioned for certiorari, asking this Court to review both of the alternative grounds held by the Court of Appeals to justify suppression. We granted the petition, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in the light of the intervening decision in United States v. Ross, 456 U. S. 798 (1982). United States v. Sharpe, 457 U. S. 1127 (1982).
We granted certiorari, 467 U. S. 1250 (1984), and we reverse.
A
The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures. The authority and limits of the Amendment apply to investigative stops of vehicles such as occurred here. United States v. Hensley, 469 U. S. 221, 226 (1985); United States v. Cortez, 449 U. S. 411, 417 (1981); Delaware v. Prouse, 440 U. S. 648, 663 (1979); United States v. Brignoni-Ponce, 422 U. S. 873, 878, 880 (1975). In Terry v. Ohio, 392 U. S. 1 (1968), we adopted a dual inquiry for evaluating the reasonableness of an investigative stop. Under this approach, we examine
“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.” Id., at 20.
As to the first part of this inquiry, the Court of Appeals assumed that the police had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marihuana trafficking, given the setting and all the circumstances when the police attempted to stop the Pontiac and the pickup. 660 F. 2d, at 970. That assumption is abundantly supported by the record.
It is not necessary for us to decide whether the length of Sharpe’s detention was unreasonable, because that detention bears no causal relation to Agent Cooke’s discovery of the marihuana. The marihuana was in Savage’s pickup, not in Sharpe’s Pontiac; the contraband introduced at respondents’ trial cannot logically be considered the “fruit” of Sharpe’s detention. The only issue in this case, then, is whether it was reasonable under the circumstances facing Agent Cooke and Officer Thrasher to detain Savage, whose vehicle contained the challenged evidence, for approximately 20 minutes. We conclude that the detention of Savage clearly meets the Fourth Amendment’s standard of reasonableness.
The Court of Appeals did not question the reasonableness of Officer Thrasher’s or Agent Cooke’s conduct during their detention of Savage. Rather, the court concluded that the length of the detention alone transformed it from a Terry stop into a defacto arrest. Counsel for respondents, as ami-cus curiae, assert that conclusion as their principal argument before this Court, relying particularly upon our decisions in Dunaway v. New York, 442 U. S. 200 (1979); Florida v. Royer, 460 U. S. 491 (1983); and United States v. Place, 462 U. S. 696 (1983). That reliance is misplaced.
In Dunaway, the police picked up a murder suspect from a neighbor’s home and brought him to the police station, where, after being interrogated for an hour, he confessed.
In Royer, government agents stopped the defendant in an airport, seized his luggage, and took him to a small room used for questioning, where a search of the luggage revealed narcotics. The Court held that the defendant’s detention constituted an arrest. See 460 U. S., at 503 (plurality opinion); id., at 509 (Powell, J., concurring); ibid. (Brennan, J., concurring in result). As in Dunaway, though, the focus was primarily on facts other than the duration of the defendant’s detention — particularly the fact that the police confined the defendant in a small airport room for questioning.
The plurality in Royer did note that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” 460 U. S., at 500. The Court followed a similar approach in Place. In that case, law enforcement agents stopped the defendant after his arrival in an airport and seized his luggage for 90 minutes to take it to a narcotics detection dog for a “sniff test.” We decided that an investigative seizure of personal property could be justified under the Terry doctrine, but that “[t]he length of the detention of respondent’s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.” 462 U. S., at 709. However, the rationale underlying that conclusion was premised on the fact that the police knew of respondent’s arrival time
Here, the Court of Appeals did not conclude that the police acted less than diligently, or that they unnecessarily prolonged Savage’s detention. Place and Royer thus provide no support for the Court of Appeals’ analysis.
Admittedly, Terry, Dunaway, Royer, and Place, considered together, may in some instances create difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest. Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,” United States v. Place, supra, at 709, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. United States v. Hensley, 469 U. S., at 228-229, 234-235; Place, supra, at 703-704, 709; Michigan v. Summers, 452 U. S. 692, 700, and n. 12 (1981) (quoting 3 W. LaFave, Search and Seizure § 9.2, pp. 36-37 (1978)). Much as a “bright line” rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.
We sought to make this clear in Michigan v. Summers, supra:
“If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain circumstances be able to detain the*686 individual for longer than the brief time period involved in Terry and Adams [v. Williams, 407 U. S. 143 (1972)].” 452 U. S., at 700, n. 12.
Later, in Place, we expressly rejected the suggestion that we adopt a hard-and-fast time limit for a permissible Terry stop:
“We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation.” 462 U. S., at 709, n. 10.
The Court of Appeals’ decision would effectively establish a per se rule that a 20-minute detention is too long to be justified under the Terry doctrine. Such a result is clearly and fundamentally at odds with our approach in this area.
B
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. See Michigan v. Summers, supra, at 701, n. 14 (quoting 3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978)); see also Place, 462 U. S., at 709; Royer, 460 U. S., at 500. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. See generally post, at 712-716 (Brennan, J., dissenting). A creative judge engaged in post hoc evaluation of police conduct can almost always imagine
We readily conclude that, given the circumstances facing him, Agent Cooke pursued his investigation in a diligent and reasonable manner. During most of Savage’s 20-minute detention, Cooke was attempting to contact Thrasher and enlisting the help of the local police who remained with Sharpe while Cooke left to pursue Officer Thrasher and the pickup. Once Cooke reached Officer Thrasher and Savage,
Clearly this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers. Respondents presented no evidence that the officers were dilatory in their investigation. The delay in this case was
We reject the contention that a 20-minute stop is unreasonable when the police have acted diligently and a suspect’s actions contribute to the added delay about which he complains. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Officer Thrasher testified that the respondents’ vehicles turned off the highway “[a]bout one minute” after he joined the procession. 4 Record 141.
We granted certiorari on June 18, 1984. On August 27, counsel for respondents notified the Court that respondents had become fugitives. On October 1, we directed counsel for respondents to file a brief as amicus curiae in support of affirmance of the Court of Appeals’ judgment. Because our reversal of the Court of Appeals’ judgment may lead to the reinstatement of respondents’ convictions, respondents’ fugitive status does not render this case moot. See United States v. Villamonte-Marquez, 462 U. S. 579, 581-582, n. 2 (1983); Molinaro v. New Jersey, 396 U. S. 365, 366 (1970) (per curiam).
Justice Stevens would have this Court adopt a rule that, whenever a respondent or appellee before the Court becomes a fugitive before we render a decision, we must vacate the judgment under review and remand with directions to dismiss the appeal. This theory is not supported by our precedents, and indeed would be a break with a recent decision. The line of authority upon which the dissent relies concerns the situation in which a fugitive defendant is the party seeking review here. In those very different cases, dismissal of the petition or appeal is based on the equitable principle that a fugitive from justice is “disentitled” to call upon this Court for a review of his conviction. See United States v. Campos-Serrano, 404 U. S. 293, 294-295, n. 2 (1971); Molinaro, supra, at 366; see also Estelle v. Dorrough, 420 U. S. 534, 541-542 (1975) (per curiam). This equitable
Agent Cooke had observed the vehicles traveling in tandem for 20 miles in an area near the coast known to be frequented by drug traffickers. Cooke testified that pickup trucks with camper shells were' often used to
The pertinent facts relied on by the Court in Dunaway were that (1) the defendant was taken from a private dwelling; (2) he was transported unwillingly to the police station; and (3) he there was subjected to custodial interrogation resulting in a confession. See 442 U. S., at 212.
It was appropriate for Officer Thrasher to hold Savage for the brief period pending Cooke’s arrival. Thrasher could not be certain that he was aware of all of the facts that had aroused Cooke’s suspicions; and, as a highway patrolman, he lacked Cooke’s training and experience in dealing with narcotics investigations. In this situation, it cannot realistically be said that Thrasher, a state patrolman called in to assist a federal agent in making a stop, acted unreasonably because he did not release Savage based solely on his own limited investigation of the situation and without the consent of Agent Cooke.
Even if it could be inferred that Savage was not attempting to elude the police when he drove his car between Thrasher’s patrol car and Sharpe’s Pontiac — in the process nearly hitting the patrol car, see App. 17, 37 — such an assumption would not alter our analysis or our conclusion. The significance of Savage’s actions is that, whether innocent or purposeful, they made it necessary for Thrasher and Cooke to split up, placed Thrasher and Cooke out of contact with each other, and required Cooke to enlist the assistance of local police before he could join Thrasher and Savage.
Concurring Opinion
concurring in the judgment.
I join the result in this case because only the evasive actions of the defendants here turned what otherwise would
I
Terry v. Ohio, 392 U. S. 1, 27 (1968), recognized a “narrowly drawn” exception to the probable-cause requirement of the Fourth Amendment for certain seizures of the person that do not rise to the level of full arrests. Two justifications supported this “major development in Fourth Amendment jurisprudence.” Pennslyvania v. Mimms, 434 U. S. 106, 115 (1977) (Stevens, J., dissenting). First, a legitimate Terry stop — brief and narrowly circumscribed — was said to involve a “wholly different kind of intrusion upon individual freedom” than a traditional arrest. Terry, 392 U. S., at 26. Second, under some circumstances, the government’s interest in preventing imminent criminal activity could be substantial enough to outweigh the still-serious privacy interests implicated by a limited Terry stop. Id., at 27. Thus, when the intrusion on the individual is minimal, and when law enforcement interests outweigh the privacy interests infringed in a Terry encounter, a stop based on objectively reasonable and articulable suspicions, rather than upon probable cause, is consistent with the Fourth Amendment.
“First, it defined a special category of Fourth Amendment ‘seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment ‘seizures’ reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause . . . .”
Similarly, in United States v. Place, 462 U. S. 696, 703 (1983), the Court held that, “[w]hen the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.” See also id., at 704 (“The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation”). Even a stop that lasts no longer than necessary to complete the investigation for which the stop was made may amount to an illegal arrest if the stop is more than “minimally intrusive.” The stop must first be found not unduly intrusive before any balancing of the government’s interest against the individual’s becomes appropriate. See also Michigan v. Summers, 452 U. S. 692, 697-699 (1981).
For this reason, in reviewing any Terry stop, the “critical threshold issue is the intrusiveness of the seizure.” United States v. Place, supra, at 722 (Blackmun, J., concurring in judgment). Regardless how efficient it may be for law enforcement officials to engage in prolonged questioning to investigate a crime, or how reasonable in light of law enforcement objectives it may be to detain a suspect until various inquiries can be made and answered, a seizure that in duration, scope, or means goes beyond the bounds of Terry cannot be reconciled with the Fourth Amendment in the absence of probable cause. See Dunaway, supra. Legitimate law enforcement interests that, do not rise to the level of probable cause simply cannot turn an overly intrusive seizure into a constitutionally permissible one.
Consistent with the rationales that make Terry stops legitimate, we have recognized several times that the requirement that Terry stops be brief imposes an independent and per se limitation on the extent to which officials may seize an individual on less than probable cause. The Court explicitly so held in Place, where we invalidated a search that was the product of a lengthy detention; as the Court said: “The length of the detention . . . alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. . . . [T]he 90-minute detention ... is sufficient to render the seizure unreasonable . . . .”
The requirement that Terry stops be brief no matter what the needs of law enforcement in the particular case is buttressed by several sound pragmatic considerations. First, if the police know they must structure their Terry encounters so as to confirm or dispel the officer’s reasonable suspicion in a brief time, police practices will adapt to minimize the intrusions worked by these encounters. Cf. United States v. Place, supra (to assure brevity of Terry airport stops, narcotic detection dogs must, under some circumstances, be kept in same airport to which suspect is arriving). Firm adherence to the requirement that stops be brief forces law enforcement officials to take into account from the start the serious and constitutionally protected liberty and privacy interests implicated in Terry stops, and to alter official conduct accordingly.
Second, a per se ban on stops that are not brief yields the sort of objective standards mandated by our Fourth Amendment precedents, standards that would avoid placing courts in the awkward position of second-guessing police as to what constitutes reasonable police practice.
Constitutional rights should not vary in this manner. Yet in the absence of a brevity standard that is independent of
Finally, dissolving the brevity requirement into the general standard that the seizure simply be reasonable will “inevitably produce friction and resentment [among the police], for there are bound to be inconsistent and confusing decisions.” Schwartz, Stop and Frisk, 58 J. Crim. L. C. & P. S. 433, 449 (1967). The police themselves may have done nothing unreasonable in holding a motorist for one hour while waiting for a registration computer to come back on line, but surely such a prolonged detention would be unlawful. Indeed, in my view, as soon as a patrolman called in and learned that the computer was down, the suspect would have to be released. That is so not because waiting for information in this circumstance is unreasonable, but simply because the stop must be brief if it is to be constitutional on less than probable cause. A “balancing” test suggests that a stop is invalid only if officials have crossed over some line they
For these reasons, fidelity to the rationales that justify Terry stops requires that the intrusiveness of the stop be measured independently of law enforcement needs. A stop must first be found not unduly intrusive, particularly in its length, before it is proper to consider whether law enforcement aims warrant limited investigation.
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We have had little occasion to specify the length to which a stop can be extended before it can no longer be justified on less than probable cause. But see United States v. Place, 462 U. S. 696 (1983) (90-minute seizure too long). In Terry and Adams v. Williams, 407 U. S. 143, 146 (1972), we described the stop simply as “brief.” In United States v. Brignoni-Ponce, 422 U. S. 873, 880 (1975), we upheld a “modest” stop that “usually consumed no more than a minute.” Dunaway v. New York, 422 U. S. 200 (1979), United States v. Martinez-Fuerte, supra, at 558, and United States v. Hensley, 469 U. S. 221 (1985), drew upon Terry to characterize permissible stops as “brief” ones; Florida v. Royer, 460 U. S. 491 (1983), described a legitimate Terry stop as
The Court has “decline[d] to adopt any outside time limitation for a permissible Terry stop.” Place, supra, at 709. While a Terry stop must be brief no matter what the needs of the authorities, I agree that Terry’s, brevity requirement is not to be judged by a stopwatch but rather by the facts of particular stops. At the same time, the time it takes to “briefly stop [the] person, ask questions, or check identification,” United States v. Hensley, supra, at 229, and, if warranted, to conduct a brief pat-down for weapons, see Terry, is typically just a few minutes. In my view, anything beyond this short period is presumptively a de facto arrest. That presumption can be overcome by showing that a lengthier detention was not unduly intrusive for some reason; as in this case, for example, the suspects, rather than the police, may have prolonged the stop.
Ill
In light of these principles, I cannot join the Court’s opinion. The Court offers a hodgepodge of reasons to explain why the 20-minute stop at issue here was permissible. At points we are told that the stop was no longer than “necessary” and that the police acted “diligently” in pursuing their investigation, all of which seems to suggest that, as long as a stop is no longer than necessary to the “legitimate investigation of the law enforcement officers,” the stop is perfectly lawful. See ante, at 677, 685, 686. As I have just argued, such reasoning puts the horse before the cart by failing to focus on the critical threshold question of the intrusiveness of the stop, particularly its length. With respect to that question, the Court seems in one breath to chastise the Court of Appeals for concluding that the length of a detention alone can transform a Terry stop into a defacto arrest, see ante, at 680, 682-688, while in another breath the Court acknowledges that, “if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Ante, at 685.
Fortunately, it is unneccessary to try to sort all of this out, for another rationale offered by the Court adequately disposes of this case. As the Court recognizes: “The delay in this case was attributable almost entirely to the evasive actions of Savage, who sought to elude the police as Sharpe
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I also cannot join the Court’s opinion because it reaches out to decide a wholly distinct issue not presented and not capable of being treated fairly without further development of a factual record. The Court of Appeals assumed, without deciding, that an objectively reasonable suspicion of criminal activity existed to justify these stops. The District Court, after listening to the officers explain the basis on which they purported to make the stop, and after testimony taking up 450 pages of transcript, found the legality of the initial stop to present “a real close question.” App. 45. This question was not presented in the certiorari petition and not a single word is devoted to it in the briefs. Yet in what can only be construed as a thinly disguised attempt to decide the question, the Court, from its position atop the judicial system, concludes that the Court of Appeals’ assumption arguendo that the stop was legal is “abundantly” supported by the record, ante, at 682 — an abundance not evident to the District Court. Cf. Anderson v. Bessemer City, ante, p. 564 (district court credibility determinations entitled to strongest deference). Of course, the proper approach to this issue is illustrated by United States v. Place, 462 U. S., at 700, n. 1, where, as here, the Court of Appeals had assumed the existence of reasonable suspicion and certiorari had not been granted on the question; the Court correctly concluded that it had “no occasion to address the issue here.” Ibid. Consistency, however, hardly has been a hallmark of the current Court’s Fourth Amendment campaigns.
Moreover, aside from the fact that the reasonable-suspicion issue was not presented, briefed, or argued by the parties,
V
In my view, the record demonstrates that the lengthy stop at issue in this case would have been permissibly brief but for the respondents’ efforts to evade law enforcement officials. Accordingly, I agree with the Court’s judgment. But because there is no way to fathom the extent to which the majority’s holding rests on this basis, and because the majority acts with unseemly haste to decide other issues not presented, I join only its judgment.
The following special law enforcement needs have been found sufficient to justify a minimally intrusive stop based on reasonable suspicion: protective weapons searches, Terry, Adams v. Williams, 407 U. S. 148 (1972); border searches for illegal aliens, United States v. Cortez, 449 U. S. 411 (1981), United States v. Brignoni-Ponce, 422 U. S. 873 (1975); airport searches for suspected drug trafficking, Florida v. Royer, 460 U. S. 491 (1983), United States v. Place, 462 U. S. 696 (1983), United States v. Mendenhall, 446 U. S. 544 (1980); stops to investigate past felonies, United States v. Hensley, 469 U. S. 221 (1985). In Royer, we referred to stops to investigate “illegal transactions in drugs or other serious crime.” 460 U. S., at 499. We have never suggested that all law enforcement objectives, such as the investigation of possessory offenses, outweigh the individual interests infringed upon. Cf. Brinegar v. United States,
A stop can also be unduly intrusive if the individual is moved or asked to move more than a short distance, if a search is more extensive than necessary to protect the police from an objective fear of danger, or if tactics amounting to custodial interrogation are used. See Dunaway v. New York, 442 U. S. 200 (1979); Kolender v. Lawson, 461 U. S. 352, 365 (1983) (Brennan, J., concurring).
The majority suggests that the 90-minute detention in Place was held too long only because the police had not acted diligently enough. In my view, the statements quoted in text adequately demonstrate that the length of the detention “alone” was “sufficient” to invalidate the seizure.
We recognized a similar point in Dunaway: “A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” 442 U. S., at 213-214.
Cf. Dunaway, swpra, at 219-220 (White, J., concurring) (rules defining appropriate Terry stops must be fashioned on categorical basis, rather than resolved “in an ad hoc, case-by-case fashion by individual police officers”).
At least we have until today. The language from Cady v. Dombrowski, 413 U. S. 433, 447 (1973), quoted ante, at 687, to the effect that full-scale Fourth Amendment searches may be reasonable even if not accomplished in the least intrusive means is of course wholly inconsistent with the holding of Royer. Cady, quite obviously, has nothing to do with the Terry stop issue here; there the question was whether a search that the Court found legitimate had to be accomplished in any particular way, while here the issue is whether the police have intruded on an individual so substantially as to need probable cause. I assume Royer’s holding remains the law on this point, and that the Court’s mere quotation out of context of Cady, unsupported by any argument or reasoned discussion, is not meant to overrule Royer. Legal reasoning hardly consists of finding isolated sentences in wholly different contexts and using them to overrule sub silentio prior holdings.
It is clear from the Court’s distaste for the task of “second-guessing” the police, ante, at 686, and from Justice Brennan’s critique of the cursory way in which the Court analyzes the investigative methods employed in this case, that the Court has little intention of choosing this option and taking seriously the requirement that the police act with “due diligence.” That demonstrated lack of will makes a strict brevity requirement all the more important.
In Michigan v. Summers, 452 U. S. 692, 700, n. 12 (1981), the Court noted that, under some circumstances, a valid stop could last longer “than the brief time period involved in Terry and Adams.” As my concurrence today indicates, I agree that the length of the actual stop in Terry does not establish a firm outer limit beyond which no valid stop can ever go. However, nothing in the record in Summers revealed how long the stop there took, 452 U. S., at 711, n. 3 (Stewart, J., dissenting), and this statement from Summers must be read against the peculiarly unintrusive setting of a stop that took place within the defendant’s own residence.
See n. 11, infra.
See ALI, Model Code of Pre-Arraignment Procedure § 110.2(1) (1975).
The District Court stated that the stop “took a little longer than it should have taken. They created their own problem.” 4 Record 221. Immediately after making this statement, the District Court ruled the stop lawful. Id., at 221-222. From the context in which the statement was made — a direct response to the Government’s argument that “each case has to more or less stand on its own facts” and that here the defendants were the cause of the overly lengthy detention — I have little doubt that the “they” referred to was the defendants. Because the District Court issued no express findings of fact, this statement, like other statements relied on to define the underlying facts, must be read in the light most faithful to the context in which it was uttered.
No question is presented as to whether odor that creates probable cause also justifies a warrantless search. See Johnson v. United States, 333 U. S. 10, 13 (1948) (“[Ojdors alone do not authorize a search without warrant”). That issue was not decided in United States v. Johns, 469 U. S. 478, 486 (1985), for there the warrantless search was justified by the automobile exception created in United States v. Ross, 456 U. S. 798 (1982). I of course disagree with the theory of Ross, see id., at 827 (Marshall, J., dissenting), but I concur in the judgment here because no question is presented as to the validity of the warrantless search and seizure of the burlap-covered bales removed from the truck driven by Savage.
Concurring Opinion
concurring.
In view of respondents’ fugitive status, see ante, at 681-682, n. 2, I would have vacated the judgment of the Court of Appeals and remanded the case to that court with directions to dismiss the respondents’ appeal from the District Court’s judgment to the Court of Appeals. See Molinaro v. New Jersey, 396 U. S. 365 (1970).
This Court, however, does not follow that path, and chooses to decide the case on the merits. I therefore also reach the merits and join the Court’s opinion.
Dissenting Opinion
dissenting.
The respondent William Sharpe and his passenger were pulled over to the side of the highway, concededly without probable cause, and held for more than 30 minutes, much of that time in the back seat of a police cruiser, before they ultimately were arrested and informed of the charges against them. In the meantime, the respondent Donald Savage was stopped one-half mile down the road, also according to the Court without probable cause. He was ordered out of his pickup truck at gunpoint, spread-eagled and frisked, and
The Court today concludes that these lengthy detentions constituted reasonable investigative stops within the meaning of Terry v. Ohio, 392 U. S. 1 (1968). It explains that, although the length of an investigative stop made without probable cause may at some point become so excessive as to violate the Fourth Amendment, the primary inquiry must nevertheless be whether the investigating officers acted “diligently” in pursuing a stop that was no longer than “necessary” to the “legitimate investigation of the law enforcement officers.” Ante, at 687. The Court reasons that Terry’s brevity requirement is in fact an accordion-like concept that may be expanded outward depending on “the law enforcement purposes to be served by the stop.” Ante, at 685. Applying this analysis to the instant case, the Court concludes that the lengthy detentions of Sharpe and Savage were reasonable because the delay was the fault of Savage, whom the Court contends “sought to elude the police” by speeding away when signaled to stop; had Savage not taken these “evasive actions,” Agent Cooke could have questioned Sharpe and Savage together and “only.a short and certainly permissible pre-arrest detention would likely have taken place.” Ante, at 688.
I dissent. I have previously expressed my views on the permissible scope and duration of Terry stops, and need not recount those views in detail today. See, e. g., United States v. Place, 462 U. S. 696, 710 (1983) (Brennan, J., concurring in result); Kolender v. Lawson, 461 U. S. 352, 362 (1983) (Brennan, J., concurring); Florida v. Royer, 460
The Court portrays the circumstances leading up to these detentions with a studied flourish. Before Sharpe and Sav
If the facts are as the Court relates them, it is not readily apparent why the Court insists on using this case as a vehicle for expanding the outer bounds of Terry investigative stops. I had thought it rather well established that where police officers reasonably suspect that an individual may be engaged in criminal activity, and the individual deliberately takes flight when the'officers attempt to stop and question him, the officers generally no longer have mere reasonable suspicion, but probable cause to arrest. See, e. g., Peters v. New York, decided together with Sibron v. New York, 392 U. S. 40, 66-67 (1968) (companion case to Terry) (“[Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest”). See also Kolender v. Lawson, supra, at 366, n. 4 (Brennan, J., concurring) (“[S]ome reactions by individuals to a properly limited Terry encounter, . . . such as flight, may often provide the necessary information, in addition to that which the officers already possess, to constitute probable cause”); Henry v. United States, 361 U. S. 98, 103 (1959) (suspicious circumstances did not ripen into probable cause because defendants’ “movements in the car had no mark of fleeing men or men
Of course, flight alone cannot give rise to probable cause; it must be coupled with pre-existing reasonable and articulable suspicion. See 1 W. LaFave, Search and Seizure §3.6, p. 669 (1978).
Thus if the facts were as the Court describes them, I would be inclined to view this as a probable-cause detention, and the reasonableness of these stops under Terry would not appear to be before us. The Court’s failure even to consider this question of probable cause is baffling, but ultimately in keeping with its recent practice in Terry cases of reaching out far beyond what is required to resolve the cases at hand so as more immediately to impose its views without the bother of abiding by the necessarily gradual pace of case-by-case decisionmaking. See, e. g., United States v. Place, 462 U. S., at 711, 714-720 (Brennan, J., concurring in result); Florida v. Royer, 460 U. S., at 509, 511, n. (Brennan, J., concurring in result).
II
The Court’s opinion is flawed in another critical respect: its discussion of Savage’s purported attempt “to elude the police” amounts to nothing more than a de novo factual finding made on a record that is, at best, hopelessly ambiguous. Neither the District Court nor the Court of Appeals ever found that Savage’s actions constituted evasion or flight. If we are nevertheless to engage in de novo factfinding, I
First, Savage’s actions in continuing to drive down the highway could well have been entirely consistent with those of any driver who sees the police hail someone in front of him over to the side of the road. Sharpe’s Pontiac was at least several car lengths in front of Savage’s pickup truck; Thrasher thought there was a separation of “a car length or two,” while Cooke testified that the distance was anywhere from between 30-50 and 100-150 feet. 3 Record 65; 4 id., at 139. Approaching in the far-left lane, Thrasher pulled even with Sharpe’s lead vehicle, “turned the blue light on,” “blew the siren,” and “motioned for him to pull over.” Id., at 145 (emphasis added). Savage moved into the right lane so as to avoid hitting Thrasher, who was slowing along with Sharpe, and continued on his way. Neither Cooke nor Thrasher ever testified that Savage “sought to elude” them, and there is nothing here that is necessarily inconsistent with .the actions of any motorist who happens to be behind a vehicle that is being pulled over to the side of the road.
This view of the record is strongly reinforced by Thrasher’s inability on the stand to give a responsive answer to the question: “Would you say the pickup truck was attempting to allude [sic] you or just passed you by thinking you had stopped the car?” 3 id., at 84. Thrasher replied with the nonanswer that “[w]ell, I was across . . . partially in two lanes and he got by me in the other lane,” ibid. — an observation that could be made about any motorist driving by a stop-in-progress.
Finally, the “[f]ail[ure] to stop [a] motor vehicle when signaled by [a] law-enforcement vehicle” is an independent traffic violation in South Carolina.
None of these factors, singularly or together, show beyond a doubt that Savage proceeded innocently past the stop of Sharpe. But given that it is the Government’s burden to prove facts justifying the duration of the investigative detention, Florida v. Royer, supra, at 500 (opinion of White, J.), and given that the courts below never found that Savage “sought to elude” the authorities,
A
Because it has not been shown that Savage “sought to elude” the police, I agree with the Court that the constitutional propriety of these detentions is governed by Terry and its progeny. These precedents lead inexorably to the conclusion that the investigative actions at issue here violated the Fourth Amendment. As the Fourth Circuit emphasized, the lengthy detentions of Sharpe and Savage did not accord with Terry’s threshold brevity requirement. 660 F. 2d 967, 970 (1981).
First. Assuming that Savage did not break away from the officers by taking “evasive actions” to “elude” them — in which instance this is not a Terry case at all — the Government has not demonstrated why two trained law enforcement officers driving in separate vehicles, both equipped with flashing lights,
Second. If the officers believed that the suspected marihuana was in Savage’s pickup truck, and if only Cooke was capable of investigating for the presence of marihuana, I am at a loss why Cooke did not follow the truck and leave Thrasher with the Pontiac, rather than vice versa.
“It was appropriate for Officer Thrasher to hold Savage for the brief period pending Cooke’s arrival. Thrasher could not be certain that he was aware of all of the facts that had aroused Cooke’s suspicions; and, as a highway patrolman, he lacked Cooke’s training and experience in dealing with narcotics investigations.” Ante, at 687, n. 5.
The record wholly undermines the Court’s conclusion. Far from being unaware of what was going on, Thrasher had conversed with Cooke by radio while they were following the vehicles and had fully discussed the various factors that might justify an investigative stop.
Finally. The record strongly suggests that the delay may have been attributable in large measure to the poor investigative coordination and botched communications on the part of the DEA. Drug enforcement agents were swarming throughout the immediate area on the morning that Savage and Sharpe were detained, conducting numerous roadblocks and “profile stops” of campers and recreational vehicles similar to Savage’s. See n. 9, supra. Even accepting the Court’s dubious premise that a highway patrolman is somehow incapable of carrying out a simple investigative stop, it is clear that Cooke had followed Sharpe and Savage for over 30 minutes and, knowing that a multiple-vehicle stop was in the offing, should have obtained assistance from other DEA agents. This was, in fact, precisely what he attempted to do. He repeatedly tried to contact the area DEA headquarters but complained over his police radio that “I can’t raise anybody else right now.” Defendant’s Ex. 1, p. 3 (police-
Far from demonstrating that these investigative stops were carried out in the most “expeditious way” using all “reasonably available” investigative methods, Florida v. Royer, 460 U. S., at 500, 505 (opinion of White, J.), the record in this case therefore strongly suggests custodial detentions more accurately characterized as resulting from hopelessly bungled communications and from Thrasher’s unwillingness to tread on Cooke’s investigative turf. I do not mean to suggest that Cooke and Thrasher bore the entire blame for these delays; it was not Cooke’s fault that his DEA backups apparently were sleeping or eating breakfast rather than monitoring their radios for his calls, and Thrasher might well have felt that it was not his place to carry out an investigation he apparently was fully capable of conducting. But constitutional rights should not so easily be balanced away simply because the individual officers may have subjectively been acting in good faith, especially where an objective evaluation of the facts suggests an unnecessarily intrusive exercise of police power.
We must remember the Fourth Amendment values at stake here. The Framers understood that “[uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government,” and that “[a]mong deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.” Brinegar v. United States, 338 U. S. 160, 180 (1949) (Jackson, J., dissenting). The Framers accordingly provided that individuals shall be arrested and detained only on probable cause — a standard with “roots that are deep in our history,” Henry v. United States, 361 U. S., at 100, and grounded on “a practical, nontechnical conception affording the best compromise that has been found for accommodating” the “often opposing” interests of effective law enforcement and individual rights, Brinegar v. United States, supra, at 176. By requiring that arrests be made only on probable cause, the Framers sought to preclude custodial
Terry’s brevity requirement thus functions as an important constitutional safeguard that prevents an investigative stop from being transformed into a custodial detention merely because “the law enforcement purposes to be served by the stop” are considered important. Ante, at 685. Absent a rigorously enforced brevity requirement, the Terry rationale “would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, supra, at 212-213. As Justice Marshall cogently discusses today, the brevity requirement also serves to compel law enforcement agencies to “structure their Terry encounters” by employing the resources and methods necessary to “minimize the intrusions worked by these encounters.” Ante, at 693 (concurring in judgment). Similarly, Royer’s requirement that the prosecution demonstrate that the Terry stop was carried out in the most “expeditious way” using all “reasonably available” investigative methods, 460 U. S., at 500, 505 (opinion of White, J.), operates to ensure that law enforcement agencies commit the manpower, training, and resources necessary to guarantee that investigative detentions are carried out in the least intrusive manner possible. Some may protest that such requirements impede unduly on law enforcement, but surely these are reasonable tradeoffs for the authority to
In this connection, I am particularly disturbed by the Court’s suggestion that it might be constitutionally reasonable for a highway patrolman to hold a motorist on Terry suspicion pending the arrival of an officer with more “training and experience.” Ante, at 687, n. 5. The Court is of course correct in emphasizing that Cooke was much more expert at drug detection than Thrasher. I can imagine a great many roadside stop situations in which it might make good police sense for the detaining officer to hold the motorist indefinitely without probable cause so that the officer could have an expert interrogator drive out from the city to conduct the “brief” questioning authorized by Terry, or so that his more experienced sergeant could be summoned to render a second opinion, or so that a trained narcotics dog owned by the adjacent county could be driven out to sniff around the windows. I can also imagine circumstances where, given the limited number of patrol cars in a community, an officer might prefer to handcuff a person stopped for investigative questioning to a lamppost while the officer responded to an emergency call.. All of these actions might be preferable from a law enforcement standpoint. The Framers did not enact the Fourth Amendment to further the investigative powers of the authorities, however, but to curtail them: Terry’s exception to the probable-cause safeguard must not be expanded to the point where the constitutionality of a citizen’s detention turns only on whether the individual officers were coping as best they could given inadequate training, .marginal resources, negligent supervision, or botched communications.
The Court today has evaded these requirements, failed even to acknowledge the evidence of bungling, miscommuni-cation, and reasonable investigative alternatives, and pronounced simply that the individual officers “acted diligently.” Ante, at 688. Thus the Court has moved a step or two further in what appears to be “an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable,” United States v. Place, supra, at 721 (Blackmun, J., concurring in judgment) — a balancing process in which the judicial thumb apparently will be planted firmly on the law enforcement side of the scales.
>
Justice Douglas, the lone dissenter m Terry, warned that “[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand.” 392 U. S., at 39. Those hydraulic pressures are readily apparent in the outcome of this case. The Court has eschewed narrow grounds of decision so as to expand the bounds of Terry; engaged in questionable de novo factfinding in violation of its proper mission; either ignored or misconstrued numerous factors in the record that call into question the reasonableness of these custodial detentions; and evaded the
Concurring in the plurality’s result in Royer, I argued that the Fourth Amendment requires an even more stringent standard: “a lawful stop must be so strictly limited that it is difficult to conceive of a less intrusive means that would be effective to accomplish the purpose of the stop.” 460 U. S., at 511. n.
See generally 1 W. LaFave, Search and Seizure §3.6, p. 669 (1978) (“[I]f there already exists a significant degree of suspicion concerning a particular person, the flight of that individual upon the approach of the police may be taken into account and may well elevate the pre-existing suspicion up to the requisite Fourth Amendment level of probable cause”). Representative federal and state cases applying this principle include United States v. Martinez-Gonzalez, 686 F. 2d 93, 100 (CA2 1982) (“The event that transformed the agents’ reasonable suspicion into probable cause was Martinez’s own manifestation of guilt evidenced by his flight from the agents back into the apartment when the agents approached him to talk to him”); United States v. Green, 216 U. S. App. D. C. 329, 333-334, 670 F. 2d 1148, 1152-1153 (1981); United States v. Gomez, 633 F. 2d 999, 1007-1008 (CA2 1980), cert. denied, 450 U. S. 994 (1981); United States v. Vasquez, 534 F. 2d 1142,1145-1146 (CA5), cert. denied, 429 U. S. 979 (1976); People v. Amick, 36 Cal. App. 3d 140, 144-145, 111 Cal. Rptr. 280, 282-283 (1973); People v. Holdman, 73 Ill. 2d 213, 221-222, 383 N. E. 2d 155, 158-159 (1978), cert. denied, 440 U. S. 938 (1979); Commonwealth v. Ortiz, 376 Mass. 349, 353-354, 380 N. E. 2d 669, 673 (1978); People v. Kreichman, 37 N. Y. 2d 693, 698-699, 339 N. E. 2d 182, 187-188 (1975) (attempt to stop vehicle on' reasonable suspicion, followed by 14-bloek chase, created probable cause); Commonwealth v. Dennis, 236 Pa. Super. 348, 351, 344 A. 2d 713, 715 (1975).
“Were it otherwise, ‘anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest,’ which can hardly ‘be countenanced under the Fourth and Fourteenth Amendments.’” 1 LaFave, supra, at 669, quoting United States v. Margeson, 259 F. Supp. 256, 265 (ED Pa. 1966).
Compare Wong Sun v. United States, 371 U. S. 471, 482 (1963) (“[W]hen an officer insufficiently or unelearly identifies his office or his mission, the occupant’s flight from the door must be regarded as ambiguous conduct”), with People v. Amick, supra, at 145, 111 Cal. Rptr., at 283
See n. 9, infra.
South Carolina Code § 56-5-750 (1976) provides: “It shall be unlawful for any motor vehicle driver, while driving on any road, street or highway of the State, to fail to stop when signaled by any law-enforcement vehicle by means of a siren or flashing light. Any attempt to increase the speed of a vehicle or in other manner avoid the pursuing law-enforcement vehicle
The Court of Appeals did not discuss this issue one way or the other. The closest that the District Court came to passing on the question was an ambiguous statement during a colloquy that the stop “took a little longer than it should have taken. They created their own problem.” 4 Record 221. The court’s reference to “they” arguably could have been to Sharpe and Savage, but such a construction is tenuous given the court’s previous comment that the stop took longer “than it should have taken” — which seems to be addressed to the actions of the officers. The Government quite properly has never sought to distill from this ambiguous remark a “finding” that Savage took “evasive actions” or “sought to elude the police.”
See, e. g., Oregon v. Elstad, ante, at 360-362 (Brennan, J., dissenting); United States v. Young, ante, at 30-35 (Brennan, J., concurring in
Like Justice Marshall, ante, at 700-702 (concurring in judgment), I cannot understand why the Court feels compelled to decide that the District Court’s finding of reasonable suspicion “is abundantly supported by the record,” ante, at 682. The Court of Appeals merely assumed that the reasonable-suspicion finding was proper for the sake of analysis, 660 F. 2d 967, 970 (CA4 1981), and the question was not presented for our consideration. The District Court considered the issue “a real close question,” emphasized its “great reluctance” on the merits, and found that the Government had barely established reasonable suspicion “by the greater weight of the evidence” but that it had not shown sufficient suspicion beyond a reasonable doubt. 5 Record 152-155, 190.
The Court has taken insufficient account of several factors. First, these detentions were little more than “profile stops” similar to numerous stops of campers and recreational vehicles carried out by the DEA in the general area on the day in question; none of these other questionable profile stops turned up any evidence of wrongdoing. 4 id., at 126-127, 190. See also 3 id., at 70-71 (DEA “set up roadblocks in that particular area and did stop a number of vehicles with roadblocks”). Second, there is nothing in the record to support the Court’s assertion that Sharpe and Savage “started speeding as soon as Officer Thrasher began following them in his marked car.” Ante, at 683, n. 3; see ante, at 701 (Marshall, J., concurring in judgment). To the extent the Court suggests that they were attempting to speed away at Thrasher’s approach, this factual finding is inconsistent with Thrasher’s concession that Sharpe and Savage stopped at every stop sign and traffic light they encountered — lawful conduct that hardly comports with notions of a high-speed attempt to elude the authorities. 4
The Fourth Circuit held that “the length of the detentions effectively transformed them into de facto arrests without bases in probable cause, unreasonable seizures under the Fourth Amendment.” 660 F. 2d, at 970. Officer Thrasher himself conceded that Savage was under “custodial arrest” during the entire stop. 4 Record 165. Far from being merely “the brief and narrowly circumscribed intrusions” authorized by the Terry line of authority, the detentions here were “in important respects indistinguishable from a traditional arrest,” and “any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, 442 U. S. 200, 212-213 (1979). See also ante, at 696-698 (Marshall, J., concurring in judgment).
As I have previously argued, I do not believe that “the absence of a less intrusive means can make an otherwise unreasonable stop reasonable.” Florida v. Royer, 460 U. S., at 511, n. (concurring in result). See also n. 1, supra.
Thrasher was driving a marked police car, and Cooke’s unmarked vehicle carried a portable flashing light that could be attached to the dash. See 4 Record 54.
On the stand, the officers disagreed as to which one of them was responsible for this questionable decision. Cooke, supposedly the officer in charge, insisted that “Thrasher told me to get the Pontiac.” Ibid. Thrasher, on the other hand, maintained that “Cooke said he would stay with the Pontiac.” Id., at 145. The Conway Highway Patrol Dispatch Communications transcript demonstrates that Thrasher told Cooke to “[t]ake the Pontiac, I’ll get the truck.” Defendant’s Ex. 1, p. 5.
See, e. g., id., at 3-4 (transcription of police-band exchanges) (discussing known offloading of marihuana during the night, vehicles’ movements, and appearance of vehicles); 4 Record 50 (Cooke “conversed with Mr. Thrasher and attempted to tell him what I had encountered, where I had been”); id., at 52-53, 159-161.
Cooke asked: “What’s your professional opinion of the way that truck’s riding?” Thrasher responded: “He’s loaded. He’s got a load in there of something.” Cooke replied: “Is that enough reason for you to stop him?” Thrasher answered: “Affirmative . . . Just say the word and I’ll . . . .” Defendant’s Ex. 1, p. 4. See also 4 Record 52-53.
3 id., at 87 (Thrasher “suspected that [the truck] may have marihuana in it” because “the camper windows were covered” with quilts and camper appeared to be overloaded); 4 id., at 160-161 (Thrasher knew the truck was suspected of carrying marihuana).
The Fourth Circuit assumed without deciding that “the odor of raw marijuana may provide probable cause to search a vehicle legitimately stopped.” 660 F. 2d, at 971. As Justice Marshall notes, “[n]o question is presented [in this case] as to whether odor that creates probable cause also justifies a warrantless search.” Ante, at 699, n. 12 (concurring in judgment). See United States v. Johns, 469 U. S. 478, 489 (1985) (Brennan, J., dissenting).
After Cooke claimed to have smelled the marijuana, Savage asked for Thrasher’s opinion. See 4 Record 177 (“Q. Don’t you remember . . . Don Savage saying [to Cooke] you don’t smell any marijuana, let’s get a second opinion from this officer here, don’t you remember that, talking about you, getting your second opinion? A. Yes, sir, I believe he might have”). Thrasher could not recall why he did not follow through on the request. Id., at 177-178.
The Court has responded by insisting that Thrasher “could not be certain that he was aware” of all the facts and therefore was justified in detaining Savage indefinitely. Ante, at 687, n. 5. The Court has not pointed to anything that would support this bald de novo finding, which is squarely contradicted by the record. See supra, at 713-714. In addition, the Court’s reasoning flies directly in the face of the Fourth Amendment, which requires the authorities to ground their conduct on what is known at the time of their actions rather than on what might subsequently turn up. See, e. g., Henry v. United States, 361 U. S. 98, 103 (1959) (“An arrest is not justified by what the subsequent search discloses”); Johnson v. United States, 333 U. S. 10, 17 (1948). The Court’s unprecedented suggestion to the contrary threatens to “obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Ibid. It is enough here that Thrasher possessed whatever reasonable suspicion Cooke did and was fully in the position to conduct the sniffing investigation that Cooke later undertook.
In response to this dissent, the Court offers several justifications for its failure to consult the record in making its de novo factual determina
In addition, the Court attempts to slip into a footnote the astonishing assertion that even if its textual discussion of Savage’s actions is completely untrue, this “would not alter our analysis or our conclusion.” Ante, at 688, n. 6 (emphasis added). The Court contends that, “whether innocent or purposeful,” Savage’s conduct “made . . . necessary” the length of these detentions. Ibid, (emphasis added). If the authorities did not reasonably carry out the stops, however, and if Savage’s continued driving was “innocent” conduct, ibid., it is logically and constitutionally intolerable to hold that Savage waived important Fourth Amendment rights because the events were his “innocent” fault.
Cf. United States v. Leon, 468 U. S. 897, 929 (1984) (Brennan, J., dissenting) (noting Court’s increasing resort to cost/benefit analyses “where the ‘costs’ of excluding illegally obtained evidence loom to exaggerated heights and where the ‘benefits’ of such exclusion are made to disappear with a mere wave of the hand”).
Dissenting Opinion
dissenting.
Both respondents are fugitives.
If a defendant escapes, and remains at large while his appeal is pending, the appeal will normally be dismissed.
“It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.”5
Almost a century later, in Estelle v. Dorrough, 420 U. S. 534 (1975) (per curiam), we further noted that “[disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law,” and that “[t]his Court itself has long followed the practice of declining
The record establishes that the respondents were apprehended while engaged in a serious and flagrant violation of law. Their appeal to the Court of Appeals was based on a claim that the evidence of their guilt was obtained in an unlawful search; such a claim, even if meritorious, establishes neither a lack of culpability nor any fundamental unfairness in the trial process.
As would have been true if they had escaped while their appeal was pending before the Court of Appeals, neither of these litigants “is where he can be made to respond to any
The Court states, ante, at 681, n. 2, that because a “reversal of the Court of Appeals’ judgment may lead to the reinstatement of respondents’ convictions, respondents’ fugitive status does not render this case moot.” I agree that the case is not technically moot.
The correct disposition of this case, I believe, is to treat it as though the respondents’ escape had mooted the appeal. If we vacate the judgment of the Court of Appeals, and if we direct that the appeal from the judgment of the District
There is one adverse consequence of the disposition I propose. It would deprive the Court of the opportunity to write
Accordingly, I respectfully dissent.
The Government’s petition for the grant of a writ of certiorari was filed on September 27,1983; it was granted on June 18,1984. On May 11,1984, respondent Sharpe’s counsel wrote a letter to the Court. It stated that, “as of this date, Mr. Sharpe is in fugitive status as to charges in the Northern District of Georgia and the State of North Carolina.” See Letter of Mark J. Kadish to Alexander Stevas, Clerk of the United States Supreme Court (May 11, 1984). Subsequently, on July 11, 1984, Judge Sol Blatt, Jr., of the United States District Court for the District of South Carolina entered two orders forfeiting the bonds of both respondents. See Motion to Proceed in Forma Pauperis of William Harris Sharpe and Donald Davis Savage, Exhibit B. The Solicitor General states that the United States Attorney’s Office has advised the Department of Justice that, “to the best of its knowledge, respondents remain fugitives.” Reply Brief for United States 2.
The Government’s petition posed the following questions:
“1. Whether law enforcement officers may temporarily detain an individual reasonably suspected of criminal activity for the period — brief, but exceeding a few minutes — reasonably necessary to pursue a circumscribed investigation of the suspected criminal activity.
“2. Whether, assuming that the initial phase of either respondent’s detention was unduly extended, the illegality mandates suppression of a large shipment of marijuana which, because of its distinct odor, was discovered immediately thereafter in respondent Savage’s vehicle.” Pet. for Cert. I.
Cf. Florida v. Meyers, 466 U. S. 380, 385 (1984) (per curiam) (Stevens, J., dissenting) (the Court “should focus [its] attention on methods of using [its] scarce resources wisely rather than laying another course of bricks in the building of a federal judicial bureaucracy”).
See, e. g., Florida v. Rodriguez, 469 U. S. 1, 2-3 (1984) (per curiam); United States v. Holmes, 680 F. 2d 1372, 1373 (CA11 1982), cert. denied, 460 U. S. 1015 (1983); United States v. Wood, 550 F. 2d 435, 437-438 (CA9 1976); United States v. Sperling, 506 F. 2d 1323, 1345, n. 33 (CA2 1974), cert. denied, 420 U. S. 962 (1975).
Molinaro v. New Jersey, 396 U.S. 365, 365-366 (1970) (per curiam).
420 U. S., at 537. That case also discussed an opinion issued over five years earlier, Molinaro v. New Jersey, supra. Regarding that opinion, we wrote:
“Thus, in Molinaro v. New Jersey, 396 U. S. 365 (1970), we dismissed the appeal of an escaped criminal defendant, stating that no persuasive reason exists to adjudicate the merits of such a case and that an escape ‘disentitles the defendant to call upon the resources of the Court for determination of his claims.’ Id., at 366.” 420 U. S., at 537.
See also Eisler v. United States, 338 U. S. 189 (per curiam), and 338 U. S. 883 (1949); Bonahan v. Nebraska, 125 U. S. 692 (1887); Smith v. United States, 94 U. S. 97 (1876); cf. Allen v. Rose, 419 U. S. 1080 (1974).
See n. 1, supra.
Cf. Stone v. Powell, 428 U. S. 465 (1976).
Cf. Walder v. United States, 347 U. S. 62, 65 (1954).
Smith v. United States, 94 U. S., at 97.
The Government disagrees. It proposes that the Court reverse the judgment of the Court of Appeals if we disagree on the merits; however, if we agree with the Court of Appeals on the merits, the Government states that we “should vacate the judgment of the court of appeals and remand the case to that court with directions to dismiss the appeals with prejudice.” Reply Brief for United States 6-7. The Court has not expressly endorsed the Government’s “heads I win, tails you lose” position.
See Molinaro v. New Jersey, 396 U. S., at 366.
See n. 11, supra.
Cf. United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950).
Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 568-574 (1947); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought; not to pass on questions of constitutionality. . . unless such adjudication is unavoidable”); Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”); Burton v. United States, 196 U. S. 283, 295 (1905) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case”).
Characteristically, it is a matter the Court simply ignores. See ante, at 681-682, n. 2. In Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam),, on which the Court relies, neither the Court nor the litigants based any argument on the respondent’s fugitive status. Moreover, it would have been inappropriate for this Court to vacate the judgment of the Florida court because we have no supervisory power over state courts. Once again, however, the Court has thus overlooked the “important differences between cases that come to us from state tribunals and those that arise in the federal system.” Id., at 7 (Stevens, J., dissenting); see also Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 972 (1984) (Stevens, J., concurring). The Court’s reliance on United States v. Campos-Serrano, 404 U. S. 293, 294-295, n. 2 (1971), is also misplaced because the point Justice Stewart made for the Court was that the respondent in that case was not a fugitive. In making that point, Justice Stewart implicitly assumed that the doctrine of Smith v. United States, supra, would apply to a case in which the fugitive was the respondent as well as to one in which the fugitive was the petitioner.
See Haybum’s Case, 2 Dali. 409 (1792). Following that decision, this Court made clear, after a series of letters, its constitutional practice of not rendering advisory opinions. The correspondences began on July 18, 1793, when Thomas Jefferson, Secretary of State, wrote the following letter to Chief Justice John Jay and Associate Justices:
“Gentlemen:
“The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, and of greater importance to the peace of the United States. Their questions depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land, and are often presented under circumstances which do not give a cognisance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the executive, as to occasion much embarrassment and difficulty to them. The President therefore would be much relieved if he found himself free to refer questions of this description to the opinions of the judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority insure the respect of all parties. He has therefore asked the attendance of such of the judges as could be collected in time for the occasion, to know, in the first place, their opinion, whether the public may, with propriety, be availed of their advice on these questions? And if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on. I have the honour to be with sentiments of the most perfect respect, gentlemen,
“Your most obedient and humble servant,
“Thos. Jefferson”
3 Correspondence and Public Papers of John Jay 486-487 (H. Johnston ed. 1891) (emphasis in original).
Attached with the letter, on behalf of President Washington, were 29 questions. See 33 Writings of George Washington 15-19 (J. Fitzpatrick*727 ed. 1940). Two days later, Chief Justice Jay and the Associate Justices penned the following to President Washington:
“Sir:
“We have taken into consideration the letter written to us, by your direction, on the 18th inst., by the Secretary of State. The question, ‘whether the public may, with propriety, be availed of the advice of the judges on the questions alluded to,’ appears to us to be of much difficulty as well as importance. As it affects the judicial department, we feel a reluctance to decide it without the advice and participation of our absent brethen.
“The occasion which induced our being convened is doubtless urgent; of the degree of that urgency we cannot judge, and consequently cannot propose that the answer to this question be postponed until the sitting of the Supreme Court. We are not only disposed, but desirous, to promote the welfare of our country in every way that may consist with our official duties. We are pleased, sir, with every opportunity of manifesting our respect for you, and are solicitous to do whatever may be in our power to render your administration as easy and agreeable to yourself as it is to our country. If circumstances should forbid further delay, we will immediately resume the consideration of the question, and decide it.
“We have the honour to be, with perfect respect, your most obedient and most humble servants.” 3 Correspondence and Public Papers of John Jay 487-488 (Johnston ed. 1891).
President Washington promptly returned a reply:
“Gentlemen: The circumstances, which had induced me to ask your counsel on certain legal questions interesting to the public, exist now as they did then; but I by no means press a decision, whereon you wish the advice and participation of your absent brethen. Whenever, therefore, their presence shall enable you to give it with more satisfaction to yourselves, I shall accept it with pleasure. With sentiments of high respect, I am, &c.” 33 Writings of George Washington 28 (J. Fitzpatrick ed. 1940).
Finally, Chief Justice Jay and the Associate Justices returned their response:
“Sir:
‘We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects*728 checks upon each other, and our being judges of a court of the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
“We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.
“We have the honour to be, with perfect respect, sir, your most obedient and most humble servants.” 3 Correspondence and Public Papers of John Jay 488-489 (Johnston ed. 1891) (emphasis in original).
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