C H A P T E R 4Arrest and Stopunder the FourthAmendment.docx

C H A P T E R 4
Arrest and Stop
under the Fourth
Amendment
Because the strongest advocates of Fourth Amendment rights
are frequently criminals, it is
easy to forget that our interpretations of such rights apply to the
innocent and the guilty alike.
—JUSTICE THURGOOD MARSHALL, United States v.
Sokolow, 490 U.S. 1, 11 (1989)
171
CHAPTER OUTLINE
OVERVIEW OF THE LAW OF PERSONAL
DETENTION
Arrests and Investigative Stops
Detention to Investigate
Detention and Search during the Execution
of a Search Warrant
ARREST
Arrest and Police Discretion
Consequences of Arrest
Defining a Fourth Amendment Seizure and Arrest
Probable Cause to Arrest
The Use of Force

THE ARREST WARRANT REQUIREMENT
Arrest in Public
Arrest in the Home
Arrests and Searches in Third-Party Homes
SEARCH INCIDENT TO ARREST
The Scope of a Search Incident to Arrest
The Protective Sweep Exception
Searching at the Station House
STOP AND FRISK
Establishing the Constitutional Authority to Stop
The Sources of Reasonable Suspicion
Terry on the Streets
Terry on the Road
Terry in Tight Places
Terry at the Airport: Drug Stops and Drug Courier
Profiles
Terry and Canine Detection Cases
LAW IN SOCIETY: DOMESTIC VIOLENCE
AND ARREST
Changing Norms and Domestic Violence Laws
Impediments to Change: Police Discretion
and Domestic Violence
The Minneapolis Experiment and the Replication
Experiments
Mandatory Arrest: Policies, Polemics, and Findings
Mandatory Arrest: Empirical Studies
Conclusion
SUMMARY
LEGAL PUZZLES
JUSTICES OF THE SUPREME COURT: STALWART

CONSERVATIVES, 1938–1962: REED, VINSON,
BURTON, MINTON, AND WHITTAKER
Stanley F. Reed
Fred M. Vinson
Harold Burton
Sherman Minton
Charles E. Whittaker
KEY TERMS
arrest
arrest warrant
body cavity search
booking
brevity requirement
bright-line rule
class action
citizen’s arrest
companion case
custodial arrest
custody
drug courier profile
false arrest
field interrogation
“fleeing felon” rule
frisk
fusion centers
illegal arrest
in personam jurisdiction
in-presence rule
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OVERVIEW OF THE LAW OF PERSONAL DETENTION
Even a routine arrest—physically detaining a person—is a
drastic event. For some people being
arrested, even when justifiably, is psychologically traumatic.
For the police officer, a routine de-
tention may quickly escalate into a life-threatening episode,
although firearms are not used in
99.8 percent of all arrests. Only 5.1 percent of arrests involve
the use or display of weapons of

any type. Indeed, in 84 percent of all arrests, police use no
tactics at all—the arrestees simply
submit.1 Nevertheless, all seizures of people are, by law,
forcible detentions in that they are not
consensual.
Arrests and Investigative Stops
A police detention of a person can be lawful or illegal. Because
liberty has priority in American
political theory and constitutional law, all detentions by
government officers must be justified by
legal standards. In the past, the only dividing line between
lawful or unlawful detention was
whether probable cause existed to make an arrest. In Henry v.
United States (1959), FBI agents
suspected two men of interstate thefts of whiskey based on a
vague tip by their employer. The
agents watched the men loading a few boxes into a car during
the daytime, followed them for a
short period, and stopped the car. “The agents searched the car,
placed the cartons (which bore
the name ‘Admiral’ and were addressed to an out-of-state
company) in their car, took the mer-
chandise and [the men] to their office and held them for about
two hours when the agents learned
that the cartons contained stolen radios. They then placed the
men under formal arrest.” The
Supreme Court reversed the conviction and ruled that an arrest
took place when the car was
stopped. At that point, the two men were forcibly detained
(although they offered no resistance).
The Court ruled that the agents did not have probable cause,
making the arrest illegal.
Terry v. Ohio (1968) modified the old rule. There is now a

lesser type of detention known
as a stop or investigative stop that is predicated on a lesser
standard of evidence, which is typi-
cally called “reasonable suspicion.” Under the Fourth
Amendment, both arrests and stops are
seizures. Seizures are lawful if justified by probable cause or
reasonable suspicion, but a deten-
tion or seizure is illegal if police act on hunches or arbitrarily.
There is no seizure, however, in consensual encounters, where a
person voluntarily agrees
to talk to officers or to allow his or her belongings to be
searched. As discussed in Chapter 3, no
evidentiary standard is necessary for consent searches. The
same is true when officers simply ob-
serve or follow people in public places. Both scenarios,
important to police work, “intrude[]
upon no constitutionally protected interest” (United States v.
Mendenhall, 1980).
This chapter explores the legal standards of arrests, stops, and
consensual encounters.
They have been developed both in criminal cases testing the
admissibility of evidence and in
civil lawsuits against the police for wrongful arrests. (See
Chapter 2). A few distinctions and def-
initions provide useful guideposts:
• When arrested, a person is in the custody of the police and
loses his or her freedom; the
person may be taken to a police station for booking and jailed
during the pretrial process;
the arrest is executed for the purpose of initiating a criminal
prosecution. In contrast, a stop
confers limited powers allowing an officer to temporarily detain
a person; its purpose is to

give the officer a short time to question the detainee to
determine whether suspicious cir-
cumstances are criminal or innocent, and not to initiate a
criminal prosecution.
• An arrested person may be thoroughly searched for weapons
and for incriminating evi-
dence. A person held briefly under a Terry stop may be
subjected only to a brief pat-down
of outer clothing to determine whether he or she is armed.
172 Chapter 4
internal passport
inventory search
investigative stop
least intrusive means
merchant’s privilege
mistaken arrest
police officer expertise
pretext search
protective sweep
public duty doctrine
reasonable force
roadblock
scope of a search incident to
arrest
search incident to arrest
seizure of the person
sobriety checklane
source city
stop

stop and frisk
strip search
sui generis
Terry stop
vagrancy statute
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Arrest and Stop under the Fourth Amendment 173
• If a person is properly stopped based on reasonable suspicion,

but the search becomes too
intrusive or the person is held for too long a time, the officer
has overstepped the bounds
and has, unlawfully, turned the stop into an arrest. Likewise, a
consensual encounter may
escalate into an investigative stop or an arrest if the encounter
becomes coercive. It then
becomes a Fourth Amendment seizure, justified only by the
requisite level of evidence.
The Supreme Court can create new legal categories to meet the
needs of an ordered socie-
ty. It did so in Terry v. Ohio (1968) by legitimating the
investigative stop, which brought police
practices within the scope of judicial control. The Court
believed that the investigative stop func-
tion (field interrogation in police lingo) is necessary to police
work and, when conducted prop-
erly, balances law enforcement needs with individual liberty.
The Court has also considered
other kinds of detention that only partially fit the arrest and
stop categories and has, up to a point,
made special rules to deal with them. Two examples are
detentions for investigative purposes
and detention while executing a search warrant.
Detention to Investigate
Physical personal characteristics—such as fingerprints, a
voiceprint (United States v. Dionisio,
1973), or a handwriting sample (United States v. Mara, 1973)—
are not protected by the expecta-
tion of privacy. They may be rightfully “obtained” or identified
during an investigation when a
defendant is lawfully in custody. A person in custody can
therefore be required to appear at

a lineup and cannot hide his or her face during a trial. In Fourth
Amendment terms, observing a
defendant’s face is not a seizure.
However, may police detain a person for investigation purposes
without probable cause or
reasonable suspicion? The Supreme Court twice held that
detaining suspects to fingerprint them
violated the Fourth Amendment but held open the possibility
that a one-time detention for
fingerprinting might be lawful in some circumstances. In Davis
v. Mississippi (1969), police
rounded up twenty-five African-American teenagers to collect
fingerprint samples, attempting to
match those found at the scene of a crime. These mass arrests,
justified only by a witness’s state-
ment that the offender was black, were not authorized by a
judicial warrant. The detentions did
not focus on a specific group of people on whom some
suspicion fell and involved a second
fingerprinting session and interrogations. This violated the
Fourth Amendment. Yet the Court, in
dictum, stated that a brief detention for fingerprinting may be
reasonable because (1) fingerprint-
ing does not intrude into a person’s thoughts or belongings, (2)
fingerprints can be obtained
briefly during normal business hours and need be taken only
once, and (3) fingerprints are an
inherently reliable means of identification. In Hayes v. Florida
(1985), a majority of the Court,
again in dictum, suggested that fingerprinting at the crime scene
might be permissible. In this
case, however, the Court found that fingerprinting at the station
house was impermissible
because the defendant was forcibly taken to the station house
without probable cause.

The Court categorically stated that the police have no authority
to detain people at will and
take them to the police station—without probable cause,
reasonable suspicion, or consent—to
investigate a crime. In Dunaway v. New York (1979), an
informant told Rochester police that
Dunaway was involved in a murder and robbery. Without
gaining any more evidence, the detec-
tive in charge ordered officers to “pick up” Dunaway and “bring
him in” for questioning. At that
point, the police did not have sufficient evidence to obtain an
arrest warrant. Dunaway was not
told that he was under arrest, but he would have been restrained
if he had attempted to leave. He
made incriminating statements during the interrogation and was
later convicted of murder. The
Court reversed and refused to extend the Terry principle; if
police have reasonable suspicion
against a person, they can briefly detain and question him where
he is found, but they cannot take
him into custody. Dunaway was unlawfully arrested without
probable cause.
In Kaupp v. Texas (2003), the Supreme Court said that the
evidence in this case “points to
arrest even more starkly than the facts in Dunaway v. New York
(1979).” Although Robert Kaupp,
age seventeen, was suspected of involvement in a murder, he
passed a polygraph examination,
and a magistrate refused to issue an arrest warrant. Detectives
nevertheless went to his house at
3 a.m. on a January morning, were let in by his father, and woke
him with a flashlight. Told “we
need to go and talk,” Robert said, “Okay.” The Court ruled that
this was not consent but “a mere

submission to a claim of lawful authority.”
Kaupp was then handcuffed. Shoeless and dressed only in boxer
shorts and a T-shirt, he
was taken to the station house, where he made incriminating
statements during an interview after
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being read Miranda warnings. The Supreme Court held that
Kaupp was seized and arrested with-
out probable cause. Because the arrest was illegal, the
confession was excluded as the “fruits of
the poisonous tree” under Brown v. Illinois. (See Chapter 2.)
Detention and Search during the Execution of a Search Warrant
In Michigan v. Summers (1981), Detroit police officers
executed a valid search warrant of a
house for narcotics. They encountered Summers, the owner,
walking down the front steps, and
asked his assistance in entering the house. The police detained
him during the search, and arrest-
ed him after discovering narcotics in the basement. A search
incident to the arrest revealed an
envelope with heroin in Summers’s pocket. Although the police
did not have probable cause to
believe that Summers was carrying drugs before the arrest, the
seizure was nevertheless upheld.
The Supreme Court concluded that there was reasonable
suspicion for the initial stop; the arrest
and search were justified by finding drugs in his house.
Summers is general authority for a categorical rule that police
may detain homeowners or
others present in a place while executing a search warrant. The
individual’s significant right to
liberty is outweighed by law enforcement needs. Giving police
routine “command of the situa-
tion” reduces the likelihood of harm to the officers and
residents that may be caused by sudden
violence or frantic efforts to conceal or destroy evidence.
Detaining a resident facilitates the
orderly completion of the search with minimal damage to
property because the resident can open

locked doors and cabinets. Detention in the person’s own home
also avoids the public stigma and
inconvenience of being taken to the police station. Further,
there is a legitimate law enforcement
interest in preventing the flight of a person if incriminating
evidence is found. The length of the
detention, however, is limited to the time it takes to search the
house.
In contrast to the Summers rule, which categorically allows
police to detain people while
executing a warrant, Muehler v. Mena (2005) held that police
may handcuff a resident detained
during a search if it is reasonable to do so. A federal jury found
that police violated Iris Mena’s
Fourth Amendment rights by handcuffing her arms behind her
back for two to three hours while
conducting a search of her house. The jury awarded her $60,000
in compensatory and punitive
damages. Police in Simi Valley, California, investigating a
gang-related drive-by shooting,
obtained a warrant to search Mena’s house because a particular
gang member, Romero, rented a
room there. The warrant authorized a “broad search” of the
house and premises for the gang
member, deadly weapons, and evidence of gang membership.
Supposedly because of the danger,
a SWAT team of eighteen officers executed the search, although
a simultaneous search of the
home of Romero’s mother, who had cooperated with the police
in the past, did not use a SWAT
team. Romero was found and arrested at his mother’s house.
The search of Mena’s property was executed at 7 a.m. She was
alone in the house. Three
others who lived in trailers on her property, along with Mena,

were detained in a garage, hand-
cuffed, for three hours. “To get to the garage, Iris, who was still
in her bedclothes, was forced to
walk barefoot through the pouring rain. . . . Although she
requested [the police] to remove the
handcuffs, they refused to do so. For the duration of the search,
two officers guarded Iris and the
other three detainees. A .22 caliber handgun, ammunition, and
gang-related paraphernalia were
found in Romero’s bedroom, and other gang-related
paraphernalia was found in the living room.
Officers found nothing of significance in Iris’ bedroom”
(Muehler v. Mena, 2005, Stevens, J.,
concurring).
In light of the dangers involved, the use of force to effectuate
this search—in the form of
handcuffs—was reasonable. Chief Justice William Rehnquist,
for the majority, noted that the use
of handcuffs was more intrusive than the detention in the
garage, and he wrote that here “the
governmental interests outweigh the marginal intrusion”
(Muehler v. Mena, 2005). Further, the
Court held that the length of detention was reasonable. “The
duration of a detention can, of
course, affect the balance of interests. . . . However, the 2 to 3-
hour detention in handcuffs in this
case does not outweigh the government’s continuing safety
interests. . . . [T]his case involved the
detention of four detainees by two officers during a search of a
gang house for dangerous
weapons” (Muehler v. Mena, 2005).
Justice Anthony Kennedy concurred “to help ensure that police
handcuffing during search-
es becomes neither routine nor unduly prolonged” (Muehler v.

Mena, 2005, Kennedy, J., concur-
ring). Justice John Paul Stevens, writing for three other
concurring justices, felt that the Court of
Appeals made mistakes and that it was proper to remand the
case “to consider whether the
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evidence supports Iris Mena’s contention that she was held

longer than the search actually last-
ed” (Muehler v. Mena, 2005, Stevens, J., concurring). The case
stands for the proposition that
handcuffing people present during the execution of a search
warrant may be reasonable if the cir-
cumstances are fraught with danger. Five justices believed that
the handcuffing in this case was
objectively reasonable, and four concurring justices seemed to
believe that the jury was justified
in finding that the extent of the handcuffing was excessive.
Summers did not create a rule that allows police to
automatically search anyone present in a
premises during the execution of a warrant. In Ybarra v. Illinois
(1979), police had a valid war-
rant to search a bar and a bartender for drugs, but not to search
the patrons. Police entered the bar
and announced to a dozen patrons that they would all be frisked
for weapons. Ybarra, a bar pa-
tron, was searched. A cigarette pack was retrieved from his
pants pocket, and heroin was found in-
side. The Supreme Court overturned Ybarra’s conviction. There
was no probable cause to search
Ybarra or any of the patrons. Simply because Ybarra was a
patron in a bar where drugs were sold
was no indication that he participated in purchases. “[A]
person’s mere propinquity to others in-
dependently suspected of criminal activity does not, without
more, give rise to probable cause to
search that person.” The patrons’ passive behavior when the
raid was announced gave rise to no
facts amounting to a reasonable suspicion that they were armed
and presently dangerous.
The Supreme Court in Illinois v. McArthur (2001) ruled that,
where reasonable, police can

prevent a householder from entering his or her home while
awaiting the arrival of a search war-
rant. Officers accompanied Tera McArthur to the trailer where
she lived with her husband,
Charles, to keep the peace while she removed her belongings.
The police stayed outside. After
Tera removed her belongings, she told the officers that “Chuck
had dope in there” and that she
had seen Chuck “slide some dope underneath the couch.”
Charles refused to consent to a search
of the trailer. He was then prevented from reentering his home
without an officer present for
about two hours in the afternoon until one of the officers had
obtained a search warrant. A search
turned up marijuana, and Charles was charged with
misdemeanors. The Illinois courts sup-
pressed the evidence.
The Supreme Court held that the police acted reasonably under
the Fourth Amendment.
The search and seizure, and the temporary removal of Charles
McArthur from his home, were
constitutional. There was probable cause (the police positively
assessed Tera’s reliability) and an
exigency (a good chance that if left alone, Charles would
destroy the marijuana). The Court rea-
soned that the police “made reasonable efforts to reconcile their
law enforcement needs with the
demands of personal privacy” and “imposed a significantly less
restrictive restraint, preventing
McArthur only from entering the trailer unaccompanied” rather
than searching without a war-
rant. The restriction on McArthur’s freedom to enter his home
was for a limited and reasonable
period of time. Justice Stevens, dissenting, argued that the
balance should be struck in favor of

liberty where the offense was a minor one, relying on the rule of
Welsh v. Wisconsin. (See
Chapter 5.) “[S]ome offenses may be so minor as to make it
unreasonable for police to undertake
searches that would be constitutionally permissible if graver
offenses were suspected.”
Police in Los Angeles County v. Rettele (2007) obtained valid
warrants to search two
houses during the day, seeking African-American drug suspects.
No ownership checks were per-
formed. One house had been sold to Max Rettele, a white
person. The warrant was executed at
7:15 a.m. by knocking on the front door. Six police were let in
by Chase Hall. Rettele and his
girlfriend were awoken in their bedroom. They were held,
naked, for about two minutes until the
police discovered that the suspects were not present. The police
apologized and left within 15
minutes of the entry. Rettele argued that once the police saw
that he and his companion were not
African Americans they should have immediately allowed them
privacy and withdrawn. The
Supreme Court disagreed. The brief, if humiliating, encounter
was reasonable because it is rea-
sonable to surmise that African Americans and whites
collaborate in criminal enterprises and
suspects have been known to keep loaded weapons in their beds.
ARREST
Arrest and Police Discretion
Fourth Amendment cases examine arrest from the defendant’s
perspective to ensure that police
act within the law; there is no Fourth Amendment issue if police

do not arrest. Police discretion
to not arrest is widely acknowledged and may be wise in cases
involving minor offenses or
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176 Chapter 4
juveniles. From the victim’s perspective, however, is there an
enforceable legal right to police
protection? These issues arise in civil tort suits against police

officers and their agencies by
injured parties. The general rule—the public duty doctrine—is
that a law enforcement officer’s
“specific duty to preserve the peace is one which the officer
owes to the public generally, and not
to particular individuals, and that the breach of such duty
accordingly creates no liability on the
part of the officer to an individual who was damaged by the
lawbreaker’s conduct.”2 A different
rule could open police departments to lawsuits by all crime
victims, or at least those who could
plausibly argue that the police were in a position to protect
them.
The public duty doctrine has been modified in states that have
mandated arrest in domestic
violence cases. (See the “Law in Society” section in this
chapter.) Several state cases held that do-
mestic violence mandatory arrest statutes imposed obligations
on police officers to arrest those
who violated domestic protection orders. The Supreme Court
faced the issue of whether such
mandatory state laws created a property right to personal
protection in a victim when police fail to
enforce a protection order in Town of Castle Rock v. Gonzales
(2005). Jessica Gonzales’s restrain-
ing order against her estranged husband was violated when he
picked up their three daughters (ages
ten, nine, and seven) about 5:30 one afternoon while they were
playing in their yard. Jessica went
to the Castle Rock, Colorado, police station or called the police
station at 7:30 p.m., 8:30 p.m.,
10:10 p.m., 12:10 a.m., and 12:50 a.m., asking the police to
look for her husband and children. She
informed them of the restraining order and its violation. At 8:30
p.m., she notified the police that

her husband had taken the children to an amusement park in
Denver. At each contact, the police re-
fused to act and told Jessica to call later. At 3:20 a.m., the
husband was killed in a shoot-out at the
police station. The three children were found in the car, shot to
death by Jessica’s husband.
A 1994 Colorado statute was designed to correct the type of
official inaction that Jessica
Gonzales faced. The law stated that a peace officer “shall use
every reasonable means” to
enforce a protection order; when an officer has probable cause
that the “restrained person” vio-
lated the protection order, the officer “shall arrest, or, if an
arrest would be impractical under the
circumstances, seek an arrest warrant against the restrained
person.” Despite the statute’s manda-
tory language and the clear intent of the legislature that police
officers should not ignore restrain-
ing order violations, the Supreme Court held that the police
inaction did not violate Gonzales’s
due process rights under the Fourteenth Amendment.
In past cases, the Supreme Court held that where state law
created a “property interest” in
tangible and intangible rights, those substantive rights are
protected by procedural due process.
These state-created property interests included welfare benefits,
disability benefits, public
education, utility services, and government employment.
Arbitrary termination or failure to sup-
ply such benefits was held to violate the Due Process Clause. In
Castle Rock, seven justices held
that Colorado did not create a personal entitlement to the
enforcement of restraining orders.
Justice Antonin Scalia, whose judicial philosophy includes

“textualism” as well as an “original-
ism,” authored the opinion:
The procedural component of the Due Process Clause does not
protect everything
that might be described as a “benefit”: To have a property
interest in a benefit, a
person clearly must have more than an abstract need or desire
and more than a
unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement
to it. (Castle Rock v. Gonzales, 2005, internal quotations
omitted)
In effect, the majority said that the mandatory language in
Colorado’s law and on Ms. Gonzales’s
protection order did not change the common law public duty
doctrine. Several reasons were
given. First, despite the law’s mandatory language, “a well
established tradition of police discre-
tion has long coexisted with apparently mandatory arrest
statutes.” Next, the statute “does not
specify the precise means of enforcement” when the restrained
person is not present: The
statute’s command that police seek an arrest warrant if an arrest
is impractical was deemed
vague, undermining the special duty that purports to override
the public duty doctrine. An enti-
tlement guaranteed by procedural due process cannot be vague.
Enforcement of the protection
order was deemed to be an indirect rather than a direct benefit
to Jessica Gonzales. Calling a
property interest in the enforcement of restraining orders
“vague and novel,” the Court conclud-
ed that its creation cannot simply go without saying.

Justice Stevens, joined by Justice Ginsburg, dissented. He
refuted every argument that
the majority put forward regarding the nature of the Colorado
protection order. The majority
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superficially examined general arrest laws with mandatory
provisions and did not properly

account for the difference between such laws and domestic
violence mandatory arrest laws.
Colorado has joined other states in responding to a crisis in the
underenforcement of domestic
violence laws and protection orders. The fact that police had an
option to get an arrest warrant
when immediate arrest was impractical did not make the law
vague. The “crucial point is that,
under the statute, the police were required to provide
enforcement; they lacked the discretion to
do nothing” (Castle Rock v. Gonzales, 2005, Stevens, J.,
dissenting; emphasis in original).
Justice Stevens also argued that the majority undermined proper
federalism by not giving due
weight to the clear language of the state law and the intent of
the state legislature. More impor-
tant, the majority refused to send the case to the Colorado
courts, in a procedure known as “cer-
tification,” to allow state courts to determine whether the
statute created a property interest. This
means that no language used by a state legislature can ever
create a §1983 property interest in
enforcing protection orders that is federally enforceable without
the Supreme Court’s approval.
Consequences of Arrest
A person seized by police officers is in their custody. The
lawful “purpose of an arrest at common
law . . . was ‘only to compel an appearance in court’” (Albright
v. Oliver, 1994, Ginsburg, J.,
concurring). The judicial process will put the arrested person
through various “screens” (initial
appearance, preliminary hearing, grand jury) to determine
whether to charge the person with a
crime and to adjudicate guilt. Because of this goal, there is a

belief that a “real” arrest does not
occur until administrative formalities occur at the police
station, including fingerprinting, identi-
fication, and a criminal history check. The colorful phrase—
“booking the suspect” indicates the
bureaucratic process of filling out forms, doing a criminal
background and fingerprint check,
entering the arrest in computer files, and the like to begin court
processing.
Legally, these formalities are not the essence of arrest. Arrest
occurs at the moment a
police officer significantly interferes with a person’s liberty and
takes him or her into custody.
The lawfulness of an arrest is determined by what happens at
the moment of the seizure. Custody
means that a suspect loses his or her freedom of movement and
most rights of personal privacy.
A major consequence of arrest is that the person is subject to a
“search incident to arrest” (dis-
cussed later in this chapter). The search incident to arrest is a
major exception to the Fourth
Amendment warrant requirement.
Arrested people have no right to prevent police officers from
observing their movements
and activities. In Washington v. Chrisman (1982), the Court
announced a clear rule: “[I]t is not
‘unreasonable’ for a police officer, as a matter of routine, to
monitor the movements of an arrest-
ed person, as his judgment dictates, following an arrest. The
officer’s need to ensure his own
safety—as well as the integrity of the arrest—is compelling.” In
this case, a campus police offi-
cer arrested an apparently underage student for possessing a
bottle of gin. The officer followed

the student into his dormitory room as he retrieved his
identification. While standing outside the
door, the officer saw what appeared to be marijuana seeds and a
pipe lying on a desk. The officer
entered the room, confirmed that the seeds were marijuana and
determined that the pipe smelled
of marijuana. The Court ruled that the officer had a right to
follow the arrested student into the
room—without a warrant—to maintain secure custody; any
motivation the officer had for
observing the room in addition to keeping the arrested person
under custody was irrelevant.
Because the contraband was in plain view and the officer was
lawfully in the room, the marijua-
na was lawfully seized.
The Supreme Court held in Atwater v. City of Lago Vista
(2001) that an officer can take a
person into custody for an offense punishable with only a minor
fine. Gail Atwater, an established
resident of Lago Vista, Texas, was driving at about 15 miles per
hour with her two young children
(ages three and five) in the front seat. None were wearing
seatbelts, a misdemeanor in Texas pun-
ishable with a $25 fine for the first offense and $50 for the
second offense. She was pulled over by
Officer Bart Turek. The children began to scream; Ms. Atwater
asked Officer Turek to lower his
voice because he was scaring the children. The officer jabbed
his finger in her face and said,
“You’re going to jail.” She asked if her children could be
brought to a neighbor’s house, but Turek
told her that the children would also be brought to the police
station. Neighborhood children
called an adult neighbor, who took Ms. Atwater’s children.
“With the children gone, Officer Turek

handcuffed Ms. Atwater with her hands behind her back, placed
her in the police car, and drove
her to the police station. Ironically, Turek did not secure
Atwater in a seat belt for the drive.” At
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“the local police station, . . . booking officers had her remove
her shoes, jewelry, and eyeglasses,

and empty her pockets. Officers took Atwater’s ‘mug shot’ and
placed her, alone, in a jail cell for
about one hour, after which she was taken before a magistrate
and released on $310 bond.” She
later pleaded no contest to the misdemeanor and paid the $50
fine.
The Supreme Court decided (5–4), in a Section 1983 suit
against the police, that Atwater’s
arrest and custody were constitutional. The majority maintained
a bright-line rule—officers do not
have to guess whether an offense is or is not jailable or whether
the arrested person is a flight risk.
Guessing wrong could subject officers to lawsuits. Justice
Sandra Day O’Connor, dissenting, noted
that a full-custody arrest imposes severe limitations on liberty.
Atwater could have been detained
for up to forty-eight hours before seeing a magistrate, could
have been jailed with potentially vio-
lent offenders, and could have received a permanent arrest
record. Justice O’Connor argued that a
flat ban on arrests for nonjailable misdemeanors created no
problem because an officer who de-
cides that an exception applies and detains the person has
immunity from civil liability for making
erroneous judgment calls. She concluded that the decision,
allowing the detention of nonjailable
misdemeanants, were unreasonable and therefore violated basic
Fourth Amendment principles.
The balance between liberty and security should have been
struck in favor of liberty.
The state of Virginia does not have an exclusionary rule for
violations of state arrest laws.
In Virginia v. Moore (2008) police officers wrongly arrested
Moore for driving under a suspend-

ed license, when under state law they should have issued a
summons. The arrest, although pro-
hibited by state law, was made with probable cause that he was
driving without a license. A
search incident to the arrest disclosed crack cocaine and Moore
was convicted for illegal drug
possession. The Virginia Supreme Court held that the arrest
violated the Fourth Amendment and
suppressed the drug evidence. The United States Supreme Court
reversed and held that when an
arrest is made with probable cause it is by definition reasonable
and therefore constitutional,
even if the arrest violated state law. The Court reasoned that
there was no historical evidence that
the Framers intended Fourth Amendment decisions to be guided
by statutory law. Stating that a
reasonable arrest upheld some state interests even where the
arrest was illegal under a statute, the
Court chose to be guided by traditional standards of
reasonableness.
There is an important distinction between a mistaken arrest and
an illegal arrest, and
each has different consequences. An illegal arrest occurs if a
person is taken into custody by a
government officer without probable cause. Cases of illegal
arrests usually occur without any
malicious intent on the part of the law enforcement officers.
Nevertheless, having violated the
Constitution, the arrest is illegal because the probable cause
standard for arrest is objective, not
subjective. The most important consequence of an illegal arrest
is that any evidence seized as a
result of the arrest is inadmissible under the exclusionary rule.
This gives arrested defendants
found with contraband an incentive to challenge the legality of

the arrest. An officer can also be
held civilly liable for an illegal arrest.
Another way in which an arrest can be illegal is if the arresting
officer had no jurisdiction
to make the arrest. This occurred in Frisbie v. Collins (1952),
when police officers from south-
west Michigan traveled to Chicago to arrest Collins for a
murder rather than seeking extradition
or requesting that the arrest be made by an Illinois law
enforcement agency. Collins argued that
this illegal arrest, possibly a violation of the Federal
Kidnapping Act, deprived the trial court of
jurisdiction to try him and that his conviction was a nullity. The
Supreme Court upheld the com-
mon law rule that a court does not lose jurisdiction to try a
defendant who is brought to the court
by illegal means. Once a court has in personam jurisdiction, or
physical custody over a crimi-
nal defendant, it does not inquire into the means by which the
person was brought into court.
The Supreme Court stood by this rule in a much criticized case,
United States v. Alvarez-
Machain (1992), in which American agents had the defendant
abducted in Mexico and trans-
ferred to the United States for trial.3 Likewise, I.N.S. v. Lopez-
Mendoza (1984), which upheld
the deportation of undocumented aliens who had been illegally
arrested, stated: “The ‘body’ or
identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible
as a fruit of an unlawful arrest, even if it is conceded that an
unlawful arrest, search, or interro-
gation occurred.”
A mistaken arrest occurs when an officer makes an arrest with

probable cause but it turns
out that in fact the wrong person was arrested. The only
consequence is that the person arrested
must be released if no evidence of criminality is discovered. An
innocent person has no civil
cause of action against the police because the officer acted in a
reasonable manner. However, a
search conducted pursuant to the mistaken arrest is valid insofar
as it discovered any contraband.
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The rule reflects the idea that probable cause does not require
certainty but only an assessment of
facts that would lead a prudent person to believe that the
suspect was involved in a crime. In Hill v.
California (1971), the Supreme Court ruled that police had
probable cause to arrest Hill. Two
men, using Hill’s car, were arrested for narcotics possession. A
search of the car produced
evidence of a robbery. The two men admitted to the robbery and
implicated Hill. The police ver-
ified Hill’s ownership of the car, his description, and his
association with one of the men. Armed
with this probable cause, the police went to Hill’s motel room
to arrest him. They knocked, and
the door was opened by Miller, who fit Hill’s description.
Miller was arrested despite the fact
that he produced identification indicating he was Miller.
Articles seized in plain view and inci-
dent to the search were used to convict Hill of robbery.
Miller’s arrest was supported by probable cause; he could not
satisfactorily explain why he
was in Hill’s room, and his personal identification could have
been fabricated. This probable
cause was based on reasonable facts and circumstances and not
on the subjective good faith of the
police. As a result, contraband seized during the arrest was
admissible. Because it can be difficult
to ascertain the true motives of police officers, the distinction
between an illegal and a mistaken
arrest turns on the objective reasonableness of the officers’
behavior, not on subjective motives.

Defining a Fourth Amendment Seizure and Arrest
The Supreme Court has offered two definitions for an arrest: the
Mendenhall definition and the
Hodari D. definition. In United States v. Mendenhall (1980), the
Court said: “[A] person has
been ‘seized’ within the meaning of the Fourth Amendment only
if, in view of all of the circum-
stances surrounding the incident, a reasonable person would
have believed that he was not free to
leave.” A person, therefore, can be arrested even though not
physically held or even touched by
an officer. Also, there are no specific words that have to be
spoken to effect an arrest: Neither an
announcement that a person is under arrest, nor a description of
a crime for which a person is
arrested, nor a reading of Miranda warnings (a popular
misconception) is required. Examples of
personal seizure offered by the Court in Mendenhall include:
“the threatening presence of sever-
al officers, the display of a weapon by an officer, some physical
touching of the person of the cit-
izen, or the use of language or tone of voice indicating that
compliance with the officer’s request
might be compelled.”
The Mendenhall definition, however, does not encompass every
situation. The Court
amended the Mendenhall definition in California v. Hodari D.
(1991) to rule that a seizure (and
hence an arrest) occurs only when an assertion and intent to
arrest, on the part of an officer, are
followed by submission of the arrested party. The rationale for
the Hodari D. definition and the
issues raised by the case are explored later in this chapter.

A Fourth Amendment seizure can occur in a variety of ways. In
Tennessee v. Garner
(1985), the Court ruled that a person who is shot by the police
is arrested: “there can be no ques-
tion that apprehension by the use of deadly force is a seizure
subject to the reasonableness
requirement of the Fourth Amendment.” A roadblock set up
intentionally to intercept a driver
fleeing from the police becomes the instrument of an arrest if
the driver plows into it (Brower v.
Inyo County, 1989). This is an arrest because there has been an
“intentional acquisition of phys-
ical control” over the person by the use of the roadblock. “[A]
roadblock is not just a significant
show of authority to induce a voluntary stop, but is designed to
produce a stop by physical
impact if voluntary compliance does not occur.” Finally, a
person, after hearing that a warrant
has been issued for his or her arrest and voluntarily
surrendering to the police, is seized for pur-
poses of the Fourth Amendment (Albright v. Oliver, 1994,
Ginsburg, J., concurring).
In each of these cases, the police intended to gain actual
custody of the suspect. If there is
no intent or actual custody, there is no seizure. The intent
element was clarified in County of
Sacramento v. Lewis (1998), a civil lawsuit against an officer,
engaged in a high-speed pursuit of
a speeding motorcycle, whose patrol car hit and killed a
passenger thrown from the motorcycle.
Applying Brower v. Inyo County, the Court in Lewis found that
the officer had no intent to seize
the passenger, and, therefore, the death caused by the high
speed chase was not a Fourth
Amendment seizure. As a result the lawsuit could be brought

under the Due Process Clause,
rather than the more specific and objective test in civil lawsuits
against police for allegedly ille-
gal arrests or excessive violence. (Discussed later in this
chapter in the Use of Force section.) In
a trial a jury could find that the officer deprived the passenger
of the substantive due process
right to life if the officer acted arbitrarily.
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Probable Cause to Arrest
Probable cause to arrest can be determined by a magistrate
issuing an arrest warrant. Most ar-
rests, however, are made without warrants, and in such cases the
officer must make a probable
cause determination.
Whether that arrest was constitutionally valid depends in turn
upon whether, at the
moment the arrest was made, the officers had probable cause to
make it—whether at
that moment the facts and circumstances within their knowledge
and of which they
had reasonably trustworthy information were sufficient to
warrant a prudent man in
believing that the petitioner had committed or was committing
an offense. (Beck v.
Ohio, 1964, p. 91)
In Beck v. Ohio (1964), police officers in a squad car saw
William Beck driving his car and
stopped and arrested him without a warrant. One officer
testified that he knew what Beck looked
like and had heard only general reports that Beck had a criminal
record and was involved in gam-
bling. A search of Beck’s person at the police station disclosed
betting slips in his shoe. The
Supreme Court ruled this arrest illegal. At the time the police
stopped the car, the officers did not
have a level of evidence that would have satisfied a magistrate
that Beck was then transporting
betting slips. Beck’s appearance and prior record were not
“inadmissible or entirely irrelevant

upon the issue of probable cause. But to hold that knowledge of
either or both of these facts con-
stituted probable cause would be to hold that anyone with a
previous criminal record could be ar-
rested at will.” Thus hearsay can be lawfully used to support
probable cause, but it must be more
reliable than simple rumors or reputation.
Ultimately, a court will review whether probable cause existed
to make a warrantless arrest,
and courts must be given facts to make the decision; they cannot
rely on the officer’s good faith:
We may assume that the officers acted in good faith in arresting
the petitioner. But
“good faith on the part of the arresting officers is not enough.”
If subjective good
faith alone were the test, the protections of the Fourth
Amendment would evaporate,
and the people would be “secure in their persons, houses,
papers, and effects,” only
in the discretion of the police. (Beck v. Ohio, 1964)
Thus the probable cause standard for arrest is objective, not
subjective.
In a typical case, probable cause is established by the officer’s
observation of a crime in
progress or by the report of an eyewitness. In Peters v. New
York (1968), a companion case to
Terry v. Ohio (1968), a police officer observed two men in his
apartment building tiptoeing in the
hallway. In the twelve years he had been living there, Officer
Lasky had never seen these men.
The men were still there when the officer had completed a
phone call. When he approached

them, they fled. He apprehended Peters, who gave no
satisfactory reason for his actions. Lasky
searched him and found burglar’s tools. The Supreme Court
ruled that “[i]t is difficult to con-
ceive of stronger grounds for an arrest, short of actual
eyewitness observation of criminal activi-
ty.” While Lasky did not actually see Peters trying to jimmy a
lock, the other evidence supplied
probable cause: facts that would lead a prudent person to
believe that Peters was engaged in an
attempt to break and enter.
In Chambers v. Maroney (1970), a light blue compact station
wagon carrying four men
was stopped by police on a spring evening in North Braddock,
Pennsylvania, about one hour
after the robbery of a Gulf service station and about two miles
from the station. Chambers, one
of the men in the car, was wearing a green sweater, and there
was a trench coat in the car:
Two teen-agers, who had earlier noticed a blue compact station
wagon circling the
block in the vicinity of the Gulf station, then saw the station
wagon speed away from
a parking lot close to the Gulf station. About the same time,
they learned that the
Gulf station had been robbed. They reported to police, who
arrived immediately, that
four men were in the station wagon and one was wearing a
green sweater. [The
station attendant] told the police that one of the men who
robbed him was wearing a
green sweater and the other was wearing a trench coat. A
description of the car and
the two robbers was broadcast over the police radio.

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This is a typical example of police obtaining probable cause
from reliable (and non-secret)
informants. Although hearsay, it is fully reliable. Of course,
such information should never be
taken for absolute proof of a crime. In rare cases, the initial
information may be given as a mis-

guided prank or out of malice. In many cases, facts are garbled
and eyewitness identification of
key facts may be wrong, especially about the identity of an
offender. (See Chapter 8.)
Probable cause must focus on a specific individual. In Johnson
v. United States (1948), an
officer standing outside an apartment smelled burning opium in
the hallway but was not sure
who occupied the apartment. The officer knocked and
announced his presence. Anne Johnson
opened the door, and the officer told her, “Consider yourself
under arrest.” The Supreme Court
held that the entry into the home without a warrant was a Fourth
Amendment violation. Further,
the arrest itself was illegal because “the arresting officer did not
have probable cause to arrest
[Johnson] until he had entered her room and found her to be the
sole occupant.”
Another common problem confronting police is whether
probable cause exists to arrest a
person who is in close proximity to another person who is
lawfully arrested. Mere proximity to
a person committing a crime does not create probable cause. For
example, in United States v.
Di Re (1948), an informer, Reed, told investigators that he was
going to buy counterfeit ration
coupons from one “Buttitta at a named place in the City of
Buffalo, New York.” Agents fol-
lowed a car driven by Buttitta. Michael Di Re was the front seat
passenger, and Reed sat in the
back. Di Re was not known to the agents. The car was stopped,
and Buttitta and Di Re were
arrested. Di Re was searched at the station house after the
arrest, and counterfeit ration coupons

were found in an envelope concealed between his shirt and
underwear. The Supreme Court
ruled that this evidence was seized illegally because the agents
did not have probable cause to
believe that Di Re was involved in the crime, invalidating the
arrest. Reed had not named Di Re
as a suspect. The police suspicion against Buttitta was based on
the word of their informant,
Reed. “But the officer had no such information as to Di Re. All
they had was his presence, and
if his presence was not enough to make a case for arrest for a
misdemeanor, it is hard to see how
it was enough for the felony” of possessing illegal coupons with
knowledge that they were
counterfeit. The Court also dismissed the argument that there
was a conspiracy simply because
Di Re was in the car.
In contrast to Di Re is Ker v. California (1963). (See Chapter
3.) By their own observa-
tions and the word of an informer, police had probable cause to
believe that George Ker was
dealing marijuana from his house. The Court held that the
police entered lawfully without a war-
rant. After entering, an agent saw George Ker sitting in the
living room and Diane Ker emerging
from the kitchen. The officer observed “through the open
doorway a small scale atop the kitchen
sink, upon which lay a “brick-like—brick-shaped package
containing the green leafy substance
which he recognized as marijuana.” The Court conceded that the
police did not have probable
cause to arrest Diane Ker when they entered the apartment. But
it ruled that viewing the marijua-
na in plain view established probable cause to believe that she
was involved in the illicit business

with her husband. This was not simply guilt by association, but
a rational inference. In Di Re, the
police could not infer, to the level of probable cause, that Di Re
possessed counterfeit ration
coupons. But Diane Ker had to know that there was marijuana in
the kitchen, which she had just
left, and given the probable cause that police had that George
Ker was illegally dealing, it was a
rational inference that she was “in joint possession with her
husband.” This amounted to proba-
ble cause to believe that she was “committing the offense of
possession of marijuana in the pres-
ence of the officers.”
In Maryland v. Pringle (2003), police officers stopped a car at
3:16 a.m. for speeding.
Partlow was driving, Pringle sat in the front seat, and Smith was
in the backseat. When Partlow
opened the glove compartment to retrieve the vehicle
registration, the officer observed a large
roll of cash. A consent search of the vehicle uncovered five
plastic glassine baggies containing
cocaine behind the upright rear seat armrest. None of the three
men admitted to owning the
drugs, and all three were arrested. Pringle later confessed to
owning the drugs. The issue in the
case was whether finding drugs in the rear seat gave police
probable cause to arrest Pringle. This
is not a case of guilt by association. Unlike the tavern patrons
in Ybarra v. Illinois (1979), Pringle
was in a small car with two men he knew, and car passengers
are often involved in a “common
enterprise with the driver.” Unlike United States v. Di Re
(1948), this was not a case where the
police had previous probable cause to suspect only the driver.
The Supreme Court held that

under the facts of the case, there was probable cause to arrest
Pringle. It was objectively reason-
able for the officer on the scene to believe “that any or all three
of the occupants had knowledge
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of, and exercised dominion and control over, the cocaine. Thus
a reasonable officer could con-

clude that there was probable cause to believe Pringle
committed the crime of possession of co-
caine, either solely or jointly” (Maryland v. Pringle, 2003).
JUDICIAL DETERMINATION OF PROBABLE CAUSE If
police arrest without a warrant, their
probable cause determination must be reviewed by a judge or
magistrate as soon as possible. A
Florida law allowed a person to be arrested on a prosecutor’s
bill of information and held for a
month before being brought before a magistrate. This law was
struck down as a Fourth
Amendment violation in Gerstein v. Pugh (1975):
[A] policeman’s on-the-scene assessment of probable cause
provides legal justifica-
tion for arresting a person suspected of crime, and for a brief
period of detention to
take the administrative steps incident to arrest. Once the suspect
is in custody, how-
ever, the reasons that justify dispensing with the magistrate’s
neutral judgment evap-
orate. There no longer is any danger that the suspect will escape
or commit further
crimes while the police submit their evidence to a magistrate.
And, while the State’s
reasons for taking summary action subside, the suspect’s need
for a neutral determi-
nation of probable cause increases significantly. The
consequences of prolonged
detention may be more serious than the interference occasioned
by arrest. Pretrial
confinement may imperil the suspect’s job, interrupt his source
of income, and
impair his family relationships. Even pretrial release may be
accompanied by bur-

densome conditions that effect a significant restraint on liberty.
When the stakes are
this high, the detached judgment of a neutral magistrate is
essential if the Fourth
Amendment is to furnish meaningful protection from unfounded
interference with
liberty. Accordingly, we hold that the Fourth Amendment
requires a judicial determi-
nation of probable cause as a prerequisite to extended restraint
on liberty following
arrest. (Gerstein v. Pugh, 1975)
The law in every state and for the federal government, based on
common law practice, has long
required police to bring arrested persons promptly before a
magistrate for initial processing. The
Florida rule was quite unusual. The Court in Gerstein did not
define what constituted a prompt
arraignment.
The Supreme Court clarified the time period for which a person
can be held after arrest be-
fore being brought before a magistrate in County of Riverside v.
McLaughlin (1991). The ma-
jority, in an opinion by Justice O’Connor, ruled that a
jurisdiction must bring an arrested person
before a magistrate for a probable cause hearing as soon as is
reasonably feasible, but in no event
later than forty-eight hours after arrest. Where an arrested
person does not receive a probable
cause determination within forty-eight hours, the burden of
proof shifts to the government to
demonstrate the existence of a bona fide emergency or other
extraordinary circumstance, which
cannot include intervening weekends. Under the county’s rule,
which excluded weekends, a

“person arrested on Thursday may have to wait until the
following Monday before they receive
a probable cause determination” or up to seven days over a
Thanksgiving holiday. The Court also
suggested that holding off bringing a person before a magistrate
in order to gather additional ev-
idence was not a bona fide emergency.
There were two dissents—by liberal and by
conservative/originalist justices. The liberal
position (per Justice Thurgood Marshall) was that the proper
constitutional rule is that a person
must be brought before a magistrate immediately upon
completion of the administrative steps in-
cident to arrest. Justice Scalia opted for a twenty-four-hour time
period based on his “originalist”
research, which found that such a time period was common in
the late eighteenth and early nine-
teenth centuries. In the past, lengthy postarrest detention
without recourse to a magistrate was
used to force confessions out of suspects. Such a practice
tempts police to abuse their control
over a suspect. The rules of Gerstein and Riverside County
rightfully make constitutional what is
now standard practice.
USE OF SECONDARY INFORMATION A police officer may
depend on a reliable informant to
establish probable cause to arrest. An informant could be an
impartial witness, a victim, or an
“undercover” informant who works for the police or receives
lenient treatment in return for infor-
mation about crimes such as drug sales (Draper v. United
States, 1959; McCray v. Illinois, 1967).

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In this era of high mobility and instantaneous communications,
police often rely on the
radio bulletins or computer notifications from other police
departments as a basis for probable
cause to arrest. In Whiteley v. Warden (1971), the Court ruled
that police may rely on a radio bul-
letin from another police department informing them that an
arrest warrant was issued. In

Whiteley, the original arrest warrant was defective; the
magistrate erred in finding probable
cause. As a result, the arrest was illegal, and the evidence
seized in a search incident to the arrest
was not admissible. The clear implication of Whiteley, however,
was that the officers who made
the arrest reasonably relied on the radio bulletin and should not
be held civilly liable for the
arrest. They acted reasonably even if there was no probable
cause for the original arrest warrant.
Arizona v. Evans (1995) and Herring v. United States (2009)
(Chapter 2) upheld the consti-
tutionality of arrests based on wrong information in police
computers, whether derived from bad
court or police records. Aside from the constitutional issues,
serious concerns about error-filled
law enforcement data bases were raised by an amicus brief filed
in Herring by the Electronic
Privacy Information Center (EPIC). Recent years have seen
dramatic increases in the number of
law enforcement data bases and electronic information sharing.
More than seventy fusion cen-
ters combine homeland security data bases such as terrorist
watch lists, criminal data bases such
as the NCIC (National Crime Information Center) data base, and
commercial data bases that, to-
gether, include huge amounts of data on citizens. “These
government and commercial databases
are filled with errors, according to the federal government’s
own reports.”4 As a result, many
people are subjected to unconstitutional arrests.
THE FELONY/MISDEMEANOR RULE The traditional common
law rules for felony and misde-
meanor arrests by law enforcement officers differ. A police

officer may arrest a person for a
felony when he or she has probable cause to believe that a crime
has been committed and that the
arrestee is the perpetrator.5 For a misdemeanor arrest to be
lawful, however, the misdemeanor
must have been committed in the officer’s presence. The reason
for this distinction is that the
public safety requires swift arrests for more serious crimes.
Because petty crimes are often the
result of squabbles between individuals, an arrest based on a
complainant’s say-so may result in
instances of false arrest and legally sanctioned harassment. The
victim of a misdemeanor had to
obtain an arrest warrant from a judge via a formal complaint in
order to initiate the criminal
process. In recent years, the in-presence rule has come under
severe criticism because it has pre-
vented police from making arrests in cases of domestic
violence. State legislatures have
rethought the rule, and virtually all have modified it to allow or
require an officer to arrest in
cases of domestic violence. (See the “Law in Society” section in
this chapter.) Statutes have also
modified the misdemeanor arrest rule for traffic-related
misdemeanors not observed directly by
a police officer.6
CITIZEN’S ARRESTS Private individuals have the right to
arrest a felon. However, the personal
consequences for a sworn law enforcement officer and a private
person making a mistaken arrest
differ. A police officer who makes a mistaken arrest (e.g.,
arrests the wrong person) that is based
on probable cause cannot be held civilly liable for the tort of
false arrest because the officer acted
reasonably. A private person who effects a citizen’s arrest is

held strictly accountable to the
arrested person for any errors made during the arrest. No matter
how reasonable the citizen’s
arrest, if a mistake was made, the person making the arrest may
be successfully sued for the tort
of false arrest. The rule places a high premium on individual
liberty to be free from unwarrant-
ed interference. The relaxation of the common law rule of strict
liability for law enforcement
officers is evidence of a policy that encourages officers to be
less fearful of the consequences of
their acts so that they will not shirk their duty. This recognizes
the difficulties that confront law
enforcement officers when hard decisions must be made with
little time for reflection and under
circumstances of heightened stress.
This common law rule has great effect on security guards; they
cannot arrest a person for
theft, for example, without the threat of liability unless they are
actually correct. “Unless the
owner has given consent, a security guard’s search of private
property will generally constitute a
trespass. And arrests or detentions not authorized by state law
generally will expose a security
guard to civil and criminal liability for false imprisonment and,
if force is involved, for assault.”7
On the other hand, “most states have codified a ‘merchant’s
privilege’ that allows store investi-
gators, and in some instances other categories of private
security personnel, to conduct brief
investigatory detentions that would be tortious or criminal if
carried out by ordinary citizens.”8

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The Use of Force
“The criminal justice process rests basically on force, the
authority of the state to use raw power,
properly and appropriately applied, to apprehend, detain, try,
and imprison. The basis of force
pervades and colors the whole criminal justice system.”9 The
system’s force may be mute, as in

prison walls or symbolized by the judge’s robe and the patrol
officer’s uniform, or it may be
mostly held in reserve; but when consent and compliance fail,
the system, and especially the
police, are required to use physical power to carry out its
functions. The use of force is problem-
atic because liberty is primary in the American constitutional
scheme, but it is justified by the
goal of enforcing public law.
The application of force, however, must be appropriate and
lawful. The common law of
arrest provides a simple, but ambiguous, rule: The force used to
effect an arrest must be reason-
able; it must not be excessive. What is reasonable force? Few
guidelines exist. One guideline is
that the force must be commensurate with the resistance offered
by a person whom the police try
to arrest. If a person resists with non-lethal force, then the
police may use nonlethal force to sub-
due him. If a person resists with deadly force, then the police
can reply in kind.
THE “FLEEING FELON” RULE Under the common law, a
police officer could use deadly force
to subdue and arrest a “fleeing felon” even though the felon had
not used deadly force.
Presumably because most common law felonies were punishable
by death, their seriousness tend-
ed to increase the likelihood that felons were dangerous to the
life of others. The “fleeing felon”
rule served as a substitute for the executioner! In America, the
“fleeing felon” rule had been con-
troversial and seriously criticized in the decades since 1960, as
the use of the death penalty
decreased and many felonies were no longer dangerous to life.

By 1980, most states had modified
the “fleeing felon” rule by statute, and many police departments
altered their policies so that
deadly force could be used only when a suspect presented clear
evidence of violent intentions.
These states felt that a blanket rule allowing police to shoot at
any fleeing felon was excessive.
The issue came before the Supreme Court, giving it a rare
opportunity to discuss the police
use of force from a constitutional perspective, in Tennessee v.
Garner (1985). The Court modi-
fied the “fleeing felon” rule as a matter of Fourth Amendment
law and held, in an opinion by
Justice Byron White, that
[t]he use of deadly force to prevent the escape of all felony
suspects, whatever the
circumstances, is constitutionally unreasonable. It is not better
that all felony sus-
pects die than that they escape. Where the suspect poses no
immediate threat to the
officer and no threat to others, the harm resulting from failing
to apprehend him does
not justify the use of deadly force to do so. (Tennessee v.
Garner, 1985)
The “fleeing felon” rule violated the Fourth Amendment rather
than the Due Process Clause of
the Fourteenth Amendment. Garner created a flat rule: A statute
that allows police to shoot to kill
any fleeing felon is void. A due process rule would have
subjected the issue to painstaking case-
by-case analysis. Deadly force against a fleeing felon is still
allowed where reasonable: “Where
the officer has probable cause to believe that the suspect poses a

threat of serious physical harm,
either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using
deadly force.” Thus the Court in Garner upheld the common law
framework: The legality of the
use of force by police is based on what was reasonable under all
the facts and circumstances of a
case; all the Court did was to announce that under the
Constitution, a flat use-of-deadly-force
rule in all fleeing felon circumstances was unreasonable.
Justice O’Connor dissented, joined by Chief Justice Warren
Burger and Justice Rehnquist.
A teenager of average height was shot and killed by a police
officer while trying to get over a
fence after running from a nonviolent house burglary. “[T]he
officer fired at the upper part of the
body, using a 38-calibre pistol loaded with hollow point bullets,
as he was trained to do by his
superiors at the Memphis Police Department. He shot because
he believed the boy would elude
capture in the dark once he was over the fence. The officer was
taught that it was proper under
Tennessee law to kill a fleeing felon rather than run the risk of
allowing him to escape.”10 The
youth died of the gunshot wound. On his person was ten dollars
and jewelry he had taken from
the house. Justice O’Connor pointed out that no matter how
regrettable were the consequences of
this case, it was not unreasonable for an officer to shoot at a
fleeing burglar at night since it was
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not known whether the burglar was armed or what had happened
in the burglarized house. “With
respect to a particular burglary, subsequent investigation simply
cannot represent a substitute for
immediate apprehension of the criminal suspect at the scene.”
The dissent was more willing to
grant unreviewed discretion to the police than the majority.
The “real-world” effects of legal rules are often unknown.
Tennessee v. Garner, however,
has had a positive effect, stimulating police departments to

modify policies and practices that
have had lifesaving effects, not only for suspects but also for
police. Jerome Skolnick and the
late James Fyfe, leading police scholars, write:
When police have started their attempts to develop policy with
the principle that
good policing in any situation consists of the actions that best
meet the primary po-
lice responsibility to protect life, the results have been
remarkably successful.
Deadly force policies that, in both philosophy and substance,
emphasize the sanctity
of life over the need to apprehend suspects have reduced
killings by police—and the
backlash that often follows—without negative effects on the
safety of citizens or the
safety and effectiveness of officers.11
STANDARDS OF REASONABLE FORCE Section 1983
lawsuits against police officers for using
excessive force offer guidance on the legal meaning of
excessive force. In Graham v. Connor
(1989), Officer Connor stopped Dethorne Graham a half mile
from a crowded convenience store
in Charlotte, North Carolina, after seeing him hastily enter and
then leave. Connor did not know
that Graham, a diabetic, was driven to the store by a friend so
he could buy orange juice to coun-
teract an insulin reaction. Graham left the store because of a
long line to go to a friend’s house to
get sugar. When stopped, Graham told Connor about the insulin
reaction. Connor told him to
wait until he returned to the store to discover what happened
and to call for backup forces.
Graham was handcuffed, his pleas for sugar were ignored by

one officer who said, “I’ve seen a
lot of people with sugar diabetes that never acted like this.
Ain’t nothing wrong with the M. F.
but drunk. Lock the S. B. up.” Graham passed out twice. He
asked an officer to look into his
wallet for a diabetic decal and was told to “shut up.” A friend
brought some orange juice to the
patrol car for Graham, but the officers refused to let him have
it. After discovering that nothing
criminal occurred at the convenience store, the police drove
Graham home and released him.
Graham sustained a broken foot, cuts on the wrist, a bruised
forehead, and an injured shoulder.
Lower federal courts held that Officer Connor did not violate
Graham’s rights.
Did the police violate Graham’s Fourth Amendment rights? Did
they act reasonably? The
Supreme Court provided the standards to be used to answer such
questions. It ruled that where an
officer seizes a person, as occurred here, reasonableness must
be decided under the Fourth
Amendment rather than the more general rules of substantive
due process under the Fourteenth
Amendment. Therefore whether excessive force was used is to
be decided by objective factors.
The officer’s motive is irrelevant. “An officer’s evil intentions
will not make a Fourth
Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good
intentions make an objectively unreasonable use of force
constitutional” (Graham v. Connor,
1989). Next, the
reasonableness of a particular use of force must be judged from
the perspective of a

reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . .
The calculus of reasonableness must embody allowance for the
fact that police offi-
cers are often forced to make split-second judgments—in
circumstances that are
tense, uncertain, and rapidly evolving—about the amount of
force that is necessary
in a particular situation. (Graham v. Connor, 1989, emphasis
added)
Under the more open-ended substantive due process analysis
that most courts had used prior to
Graham, looking at the amount of force used under the
circumstances, the extent of injuries, and
the motive of the officer, plaintiffs may have had greater leeway
to prevail in Section 1983 ac-
tion. Nevertheless, the Court’s decision was unanimous. The
case was remanded for reconsider-
ation by lower courts.
Brower v. Inyo County (1989) established that a roadblock can
be an instrument of force
that effects an arrest. Brower stole a car and eluded the police
in a high-speed twenty-mile chase.
A police roadblock was set up consisting of an unilluminated
eighteen-wheel tractor-trailer
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186 Chapter 4
blocking both lanes of a road behind a curve, with a police car’s
headlights pointing at the on-
coming traffic. Brower was killed when his car hit the
roadblock. This constituted an arrest. The
remaining question was whether excessive force was used. The
Supreme Court, indicating that
this was a factual issue depending on the circumstances of the
roadblock, remanded the case for
further proceedings to determine if setting up an immoveable
roadblock behind a blind curve
with a police car headlights positioned so that Brower would be
“blinded” on his approach was
reasonable.
FLEEING MOTORISTS High-speed police pursuits are a

controversial topic, with critics com-
plaining that many are unnecessary and put innocent drivers and
pedestrians at risk. In Scott v.
Harris (2007), a case with unknown but possibly enormous
constitutional ramifications, the
Supreme Court relied on its own viewing of a police car video
of an automobile chase to rule that
a civil suit by an injured fleeing motorist had to be dismissed.
Victor Harris, left a quadriplegic
after his high-speed pursuit was ended by Deputy Timothy
Scott’s supervisor-authorized
manuever of bumping into Harris’s vehicle and sending it into a
crash, sued Harris for using
excessive force resulting in an unreasonable seizure. Before the
case went to the jury, Deputy
Scott filed a motion for summary judgment based on qualified
immunity (see Chapter 2). The
Court of Appeals, upholding the District Court, “concluded that
Scott’s actions could constitute
‘deadly force’ under Tennessee v. Garner” and so could be sent
to the jury to determine if the
Deputy’s action was reasonable. Under established legal rules
the facts on a summary judgment
motion have to be viewed “in the light most favorable to the
party asserting the injury” (Harris)
because a trial judge or jury had not yet adjudicated the facts.
Harris’s version of the six-minute, ten-mile chase, with speeds
up to 85 miles per hour on
a two-lane road noted that “he did not did run any motorists off
the road. Nor was he a threat to
pedestrians. . . .” Justice Scalia, writing for the eight-justice
majority, noted sarcastically that
Harris’s account gave the impression that he “was attempting to
pass his driving test” rather than
fleeing from the police. “The videotape tells quite a different

story.” In Scalia’s account, The
video showed Harris’s “vehicle racing down narrow, two-lane
roads in the dead of night at
speeds that are shockingly fast.” It swerved past a dozen cars,
crossed the double-yellow line,
forced cars off the road, ran red lights, and traveled for
considerable periods in the center left-
turn-only lanes. “Far from being the cautious and controlled
driver the lower court depicts, what
we see on the video more closely resembles a Hollywood-style
car chase of the most frightening
sort, placing police officers and innocent bystanders alike at
great risk of serious injury.” Justice
Breyer, concurring, admitted that the video changed his mind
about his vote.
As a matter of procedural law, Scott v. Harris ruled that the
Supreme Court could accept its
interpretation of the video because it had to accept the facts
most favorable to the party opposing
the motion to dismiss only if there is a “genuine” dispute of the
facts. After viewing the video,
which, according to the majority, blatantly contradicted Harris’s
version, the Court felt there was
no factual dispute. The Court then held that Deputy Scott did
not violate the Fourth Amendment.
His forceful seizure of Harris was objectively reasonable based
on all the fact of the case. Two
factors seem to portend courts finding in favor of police in
lawsuits following car-chase injuries.
First, the majority distinguished the facts of Garner: “Garner
had nothing to do with one car
striking another or even with car chases in general. . . . A police
car’s bumping a fleeing car is, in
fact, not much like a policeman’s shooting a gun so as to hit a
person” (Scott v. Harris, 2007,

citation to a Court of Appeals case omitted). Second, in
assessing whether high-speed pursuits
are reasonable, “We think it appropriate in this process to take
into account not only the number
of lives at risk, but also their relative culpability. It was
respondent, after all, who intentionally
placed himself and the public in danger by unlawfully engaging
in the reckless, high-speed
flight. . . .” (Scott v. Harris, 2007, emphasis added). This rule
will make it more difficult for
plaintiffs to question the judgment of police in deciding to
undertake high-speed pursuits rather
than other means of responding to fleeing motorists. The
majority layed down what it called a
“more sensible rule: A police officer’s attempt to terminate a
dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the
Fourth Amendment, even when it
places the fleeing motorist at risk of serious injury or death.”
Justice Stevens’s dissent put the majority’s factual conclusions,
which omitted some facts,
in quite a different light. Harris was pursued for a traffic
offense; the police had his license plate
number and could have found him without a chase; part of the
chase at higher speeds occurred on
a four-lane (not a two-lane) road, cars pulled off the road in
response to police sirens, the pursuit
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took place at night “on a lightly traveled road in Georgia where
no pedestrians or other ‘bystanders’
were present; and the majority’s view that if the police
discontinued the chase other drivers would be
endangered was “uninformed speculation.” Not only does Justce
Stevens’s dissent point out the
basic idea that different people can view “facts” differently, it
raised the more fundamental question
that the court’s decision “has usurped the jury’s factfinding
function and, in doing so, implicitly la-
beled the four other judges to review the case unreasonable. [It]
implies that no reasonable person
could view the videotape and come to the conclusion that deadly
force was unjustified” (Scott v.

Harris, 2007, Stevens, J. dissenting). His point was butressed by
an empirical study of a diverse
sample of 1,350 Americans who viewed a version of the video
in this case. The results tended to
show that the video did not “speak for itself” but was viewed
differently by different segments of the
community, with those holding egalitarian and communitarian
views “more likely to see the police,
not Harris, as the source of the risk to the public and to
conclude that use of deadly force was not a
justifiable response” and those with hierarchical and
individualistic outlooks forming “views em-
phatically in line with those of the Court majority.”12 The
authors were not so much arguing a specif-
ic resolution of the pursuit issue, but raising a concern that the
Court’s resort to “brute sense impres-
sions to justify its decision” would undermine the voice of
jurors with diverse cultural perspectives.
THE ARREST WARRANT REQUIREMENT
The need to obtain an arrest warrant, and the form the warrant
takes, is determined by the cir-
cumstances and settings under which the suspect is to be taken
into custody. This section reviews
the law that pertains to arresting suspects (1) in public, (2) in
their own homes, and (3) in the
homes of third parties. It also reviews the question of detaining
and searching people while exe-
cuting a search warrant.
Arrest in Public
United States v. Watson (1976) upheld the authority of the
police to arrest felons in public places
without a warrant.

Read Case and Comments: United States v. Watson.
Watson left several questions unresolved, the most important of
which was whether an ar-
rest warrant is necessary to enter a home in order to make an
arrest. This question was answered
four years later in Payton v. New York (1980).
Arrest in the Home
Payton v. New York (1980) held that, absent an exigency,
police are required to have an arrest war-
rant to enter a person’s home to make an arrest. In this case,
police had probable cause to believe
that Payton had committed a murder and robbery. Around 7:30
a.m., six officers went to Payton’s
apartment without an arrest warrant, intending to arrest him.
Lights were on and music was heard
in the apartment, but there was no response to their knock on
the metal door. About thirty minutes
later, the police used crowbars to break open the door and enter
the apartment. No one was there,
but a .30-caliber shell casing in plain view was seized and
admitted into evidence at Payton’s mur-
der trial. Payton moved to suppress the shell casing as the
product of an illegal arrest.
The majority (per Justice Stevens) held that entering the home
to make a routine felony
arrest without a warrant violated the Fourth Amendment. The
government argued that the Fourth
Amendment was designed only to prevent “general warrants”
and not to require warrants when
the police had probable cause to arrest. The Court replied,
“[T]he evil the Amendment was

designed to prevent was broader than the abuse of a general
warrant. Unreasonable searches or
seizures conducted without any warrant at all are condemned by
the plain language of the first
clause of the Amendment.”
Was this ruling consistent with Watson, which overlooked the
literal words of the Fourth
Amendment? The Court did not disturb the Watson rule but
instead distinguished arrests made in
the home from arrests made in public places: “[H]owever, . . .
[a] greater burden is placed . . . on
officials who enter a home or dwelling without consent.
Freedom from intrusion into the home
or dwelling is the archetype of the privacy protection secured
by the Fourth Amendment.” The
“right of a man to retreat into his own home and there be free
from unreasonable governmental
intrusion” stands at the very core of the Fourth Amendment.
Payton is one of several post-Katz
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cases that place a special emphasis on the privacy of the home
rather than treating all “expecta-
tions of privacy” the same. The majority supported its position
with common law history and
trends among the states: A “long-standing, widespread practice
is not immune from constitution-
al scrutiny. But neither is it to be lightly brushed aside.” As for
the concern by law enforcement
that the rule would undermine public safety, the Court made it
clear that the police may enter a
home without a warrant when there is an exigency.
Justice White dissented, joined by Chief Justice Burger and
Justice Rehnquist, giving four
reasons to uphold the rule that had allowed police to enter a
house without a warrant to make an
arrest: (1) The rule was limited to felonies and did not apply to
misdemeanors, (2) the privacy of
the resident was protected by the “knock and announce” rule,
(3) the arrest had to be made in the
daytime, and (4) such arrest was lawful only if supported by
“stringent probable cause.” These

are rather weak arguments since the dissent restates conditions
that would exist in any event. If
pushed to the extreme, such arguments could totally eliminate
the requirement for arrest war-
rants for home arrests, just as Watson had, in effect, destroyed
any constitutional underpinning
for arrest warrants in public places.
The difference between the Watson and Payton decisions is, at
one level, explained by the
factual difference between an arrest in public and an arrest in
one’s home. Yet there is enough
similarity in these cases to illustrate how “middle-of-the-road”
or “swing” justices influence
Supreme Court decision making. In these cases, two
consistently liberal justices, William
Brennan and Thurgood Marshall, voted for a warrant in both
Watson and Payton. Similarly, three
more conservative justices—Byron White, William Rehnquist,
and Warren Burger—voted
against the warrant in both cases. The different outcomes in the
two cases may be explained by
the thinking of the three swing justices—Potter Stewart, Harry
Blackmun, and Lewis Powell—
who voted against a warrant in Watson (1976) but in favor of a
warrant in Payton (1980). The
swing justices were joined by Justice John Paul Stevens, who
was appointed to the Court be-
tween the two cases. Thus the facts alone did not explain the
different holding in Watson and
Payton. Rather, the attitudes of the justices who evaluated those
facts were decisive. The pre-ex-
isting leanings in favor of or against law enforcement of the
“conservative” and “liberal” justices
made their votes unresponsive to the differing facts of Watson
and Payton. The justices with less

ideological leanings concerning this issue were able to evaluate
the cases differently. This “polit-
ical” evaluation of the Supreme Court does not explain every
case, but it does show that justices’
personalities, temperaments, life experiences, and belief
systems come into play in fashioning
the rules and doctrines of constitutional law.
EXIGENT CIRCUMSTANCES Payton held that police may
enter the suspect’s home to make an ar-
rest without a warrant when exigent circumstances exist. The
Supreme Court has been highly protec-
tive of the expectation of privacy in one’s home and has
narrowly viewed police claims that they
have entered under an “exigency.” For example, in Welsh v.
Wisconsin (1984) (see Chapter 5), police
entered a suspect’s home without a warrant or consent in “hot
pursuit” of a person suspected in a non-
jailable, first-time civil traffic offense of driving under the
influence. The police tried to justify the
entry on an exigency basis: that the blood alcohol level of a
suspected drunk driver was decreasing
over time. The Court found that this “exigency” simply did not
outweigh the sanctity of the home.
In Minnesota v. Olson (1990), police made a warrantless entry
into an apartment in which
Olson was a guest and discovered incriminating evidence. The
Court first held that Olson had a
legitimate expectation of privacy. Did the police breach that
privacy by entering without a war-
rant? In this case, the crime—a robbery and murder—was far
more serious than in Welsh. The
Minnesota Supreme Court applied a “totality of the
circumstances approach” to find there was
no exigency compelling the police to enter the home without a

warrant. That court looked at the
gravity of the crime, whether the suspect was reasonably
believed to be armed, the strength of
the probable cause against the defendant, and the likelihood of
escape.13 In this case, Olson was
not clearly identified as the driver of a car involved in a robbery
and murder. The only link was a
few papers found in the car and identified by an unverifiable,
anonymous tip. The police did not
rush to arrest him when they learned of his identity and knew
that he was in the apartment with
women who called the police. They had sufficient time to obtain
a warrant. There was no hot
pursuit of a dangerous felon. The destruction of incriminating
evidence was not imminent. The
apparent danger of violence or escape was low in light of the
police actions. The Minnesota
courts found that no exigency existed and suppressed the
incriminating evidence. The U.S.
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CASE AND COMMENTS
United States v. Watson
423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)
MR. JUSTICE WHITE delivered the opinion of the Court.
This case presents questions under the Fourth Amendment as to
the legality of a warrantless
arrest. * * *
I
[A reliable informant, Khoury, informed postal inspectors that
Watson would furnish stolen credit cards.
Acting under their instructions, Khoury arranged a meeting with
Watson five days later in a restaurant.]
Khoury had been instructed that if Watson had additional stolen
credit cards, Khoury was to give a
designated signal. The signal was given, the officers closed in,
and Watson was forthwith arrested. [No
stolen credit cards were found on Watson, but some were found
in his automobile. The court of appeals

ruled that the arrest was a violation of the Fourth Amendment
because there was no arrest warrant and
no exigency; consequently, evidence obtained from the search
of Watson’s automobile and seizure of the
credit cards had to be excluded as the fruits of an illegal arrest.]
II
* * *
Contrary to the Court of Appeals’ view, Watson’s arrest was not
invalid because executed without
a warrant. [a] Title 18 U.S.C. sec. 3061(a)(3) expressly
empowers the * * * Postal Service to authorize
Postal Service officers and employees “performing duties
related to the inspection of postal matters” to
“make arrests without warrant for felonies * * * if they have
reasonable grounds to believe
that the person to be arrested has committed or is committing
such a felony.”
* * * Because there was probable cause in this case to believe
that Watson had violated [the law],
the inspector and his subordinates, in arresting Watson, were
acting strictly in accordance with the gov-
erning statute and regulations. [b] The effect of the judgment of
the Court of Appeals was to invalidate
the statute as applied in this case and as applied to all the
situations where a court fails to find exigent
circumstances justifying a warrantless arrest. We reverse that
judgment.
Under the Fourth Amendment, the people are to be “secure in
their persons, houses, papers, and
effects, against unreasonable searches and seizures, * * * and
no Warrants shall issue, but upon probable

cause. * * *” [c] Section 3061 represents a judgment by
Congress that it is not unreasonable under the
Fourth Amendment for postal inspectors to arrest without a
warrant provided they have probable cause
to do so. This was not an isolated or quixotic judgment of the
legislative branch. Other federal law
enforcement officers have been expressly authorized by statute
for many years to make felony arrests on
probable cause but without a warrant. * * * [d]
* * * [T]here is nothing in the Court’s prior cases indicating
that under the Fourth Amendment a
warrant is required to make a valid arrest for a felony. Indeed,
the relevant prior decisions are uniformly
to the contrary.
“The usual rule is that a police officer may arrest without
warrant one believed by the officer upon
reasonable cause to have been guilty of a felony. . . .” * * * [e]
Just last Term, while recognizing that
maximum protection of individual rights could be assured by
requiring a magistrate’s review of the fac-
tual justification prior to any arrest, we stated that “such a
requirement would constitute an intolerable
handicap for legitimate law enforcement” and noted that the
Court “has never invalidated an arrest sup-
ported by probable cause solely because the officers failed to
secure a warrant.” Gerstein v. Pugh. * * *
The cases construing the Fourth Amendment thus reflect the
ancient common-law rule that a
peace officer was permitted to arrest without a warrant for a
misdemeanor or felony committed in his
presence as well as for a felony not committed in his presence if
there was reasonable ground for mak-
ing the arrest. * * * This has also been the prevailing rule under

state constitutions and statutes. * * * [f]
The balance struck by the common law in generally authorizing
felony arrests on probable cause,
but without a warrant, has survived substantially intact. It
appears in almost all of the States in the form
of express statutory authorization. * * * [The American Law
Institute’s Model Code of Pre-arraignment
Procedure in 1975 adopted] “the traditional and almost
universal standard for arrest without a warrant.”
* * * Congress has plainly decided against conditioning
warrantless arrest power on proof of
exigent circumstances. Law enforcement officers may find it
wise to seek arrest warrants where practi-
cable to do so, and their judgments about probable cause may be
more readily accepted where backed by
[a] The Court states its decision at
the outset. What follows are the
reasons for this decision. The court
of appeals invalidated the statute
under its reading of the Fourth
Amendment. Does the statute’s
authorization of warrantless arrests
end the constitutional reasoning
process?
[f] This assumes that the Fourth
Amendment absorbed common law
practice. Another perspective is that
the amendment changed common
law practices to expand the
protection of individual liberty.
[e] Is the need for law enforcement

efficiency a constitutional reason?
Could this reasoning lead to the total
elimination of arrest warrants?
[d] Entick v. Carrington (1765) said
that an illegal practice does not
become legal simply because it has
been practiced for a long time. Does
this point weaken Justice White’s
argument?
[c] Does the judgment of Congress
violate the Fourth Amendment’s
plain words?
[b] Would you nevertheless require
the police to get a judicial arrest
warrant in investigations where they
have plenty of time to get one?
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190 Chapter 4
a warrant issued by a magistrate. * * * [g] But we decline to
transform this judicial preference into a
constitutional rule when the judgment of the Nation and
Congress has for so long been to authorize
warrantless public arrests on probable cause rather than to
encumber criminal prosecutions with endless
litigation with respect to the existence of exigent circumstances,
whether it was practicable to get a
warrant, whether the suspect was about to flee, and the like.
Watson’s arrest did not violate the Fourth Amendment, and the
Court of Appeals erred in holding
to the contrary.
* * *
MR. JUSTICE POWELL, concurring.
* * * Today’s decision is the first square holding that the Fourth
Amendment permits a duly
authorized law enforcement officer to make a warrantless arrest
in a public place even though he had
adequate opportunity to procure a warrant after developing
probable cause for arrest. [h]

On its face, our decision today creates a certain anomaly. There
is no more basic constitutional
rule in the Fourth Amendment area than that which makes a
warrantless search unreasonable except in a
few “jealously and carefully drawn” exceptional circumstances.
* * * On more than one occasion this
Court has rejected an argument that a law enforcement officer’s
own probable cause to search a private
place for contraband or evidence of crime should excuse his
otherwise unexplained failure to procure a
warrant beforehand. * * * [i]
Since the Fourth Amendment speaks equally to both searches
and seizures, and since an arrest,
the taking hold of one’s person, is quintessentially a seizure, it
would seem that the constitutional provi-
sion should impose the same limitations upon arrests that it
does upon searches. Indeed, as an abstract
matter an argument can be made that the restrictions upon arrest
perhaps should be greater. [j] A search
may cause only annoyance and temporary inconvenience to the
law-abiding citizen, assuming more se-
rious dimension only when it turns up evidence of criminality.
An arrest, however, is a serious personal
intrusion regardless of whether the person seized is guilty or
innocent. Although an arrestee cannot be
held for a significant period without some neutral determination
that there are grounds to do so, * * * no
decision that he should go free can come quickly enough to
erase the invasion of his privacy that already
will have occurred. * * * Logic therefore would seem to dictate
that arrests be subject to the warrant re-
quirement at least to the same extent as searches.
But logic sometimes must defer to history and experience. [k]

[Justice Powell then goes on to
argue that historical practice shows that the Fourth Amendment
was not intended to require arrest war-
rants and that to adopt such a rule would severely hamper law
enforcement.]
* * *
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
BRENNAN joins, dissenting.
* * *
There is no doubt that by the reference to the seizure of persons,
the Fourth Amendment was intended to
apply to arrests. * * *
The Court next turns to history. It relies on the English
common-law rule of arrest and the many
state and federal statutes following it. There are two serious
flaws in this approach. First, as a matter of
factual analysis, the substance of the ancient common-law rule
provides no support for the far-reaching
modern rule that the Court fashions on its model. Second, as a
matter of doctrine, the longstanding exis-
tence of a Government practice does not immunize the practice
from scrutiny under the mandate of our
Constitution.
The common-law rule was indeed as the Court states it. * * * To
apply the rule blindly today,
however, makes [little] sense * * * without understanding the
meaning of * * * words in the context of
their age. For the fact is that a felony at common law and a
felony today bear only slight resemblance,
with the result that the relevance of the common-law rule of
arrest to the modern interpretation of our
Constitution is minimal.

* * * Only the most serious crimes were felonies at common
law, and many crimes now classified
as felonies under federal or state law were treated as
misdemeanors. * * * [l]
* * * To make an arrest for any of these crimes [misdemeanors]
at common law, the police offi-
cer was required to obtain a warrant, unless the crime was
committed in his presence. Since many of
these same crimes are commonly classified as felonies today,
however, under the Court’s holding a war-
rant is no longer needed to make such arrests, a result in
contravention of the common law.
Thus the lesson of the common law, and those courts in this
country that have accepted its rule, is
an ambiguous one. Applied in its original context, the common-
law rule would allow the warrantless
arrest of some, but not all, of those we call felons today.
Accordingly, the Court is simply historically
wrong when it tells us that “[t]he balance struck by the common
law in generally authorizing felony
arrests on probable cause, but without a warrant, has survived
substantially intact.” As a matter of sub-
stance, the balance struck by the common law in
accommodating the public need for the most certain
and immediate arrest of criminal suspects with the requirement
of magisterial oversight to protect
[l] Does Justice Marshall’s analysis
(requiring arrest warrants for
non-life-threatening crimes) make
more sense than the majority’s?
Would such a rule undermine
effective law enforcement?

[k] Is this too easy an out? Does this
mean that the Court need not follow
the Constitution just because it has
not been followed for a long time?
[j] Does this argument undermine
the Court’s decision? How can the
Court avoid the “logic” of the Fourth
Amendment?
[i] Justice Powell politely says that
the majority opinion has skirted the
main question.
[h] It is interesting that a practice
could exist for centuries before being
challenged legally. There was greater
acceptance of the legal status quo in
the past.
[g] If this makes arrest warrants
totally discretionary, of what use is
the Fourth Amendment?
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Supreme Court upheld this fact-based application of the lower
court’s suppression of the evi-
dence and agreed that there was no exigency to override the
Payton rule.
Arrests and Searches in Third-Party Homes
Is a search warrant needed to arrest a person who is in the home
of a third party, or is an arrest
warrant for the suspect sufficient? In Steagald v. United States
(1981), police obtained an arrest
warrant for Ricky Lyons. Two days later, they proceeded to
Steagald’s home, where they
believed Lyons was hiding. Outside the premises, they stopped
and frisked Gary Steagald and an
acquaintance and then entered the home to look for Lyons.
Lyons was not present, but the police
observed cocaine in plain sight. Based on that observation, a

search warrant was obtained, and
large quantities of cocaine were seized. The Supreme Court held
that the initial intrusion into the
home was unconstitutional. There was neither an exigency nor a
search warrant nor consent to
authorize or allow entry into the home of a third party to look
for Lyons: An arrest warrant does
not give officers the right to enter the home of a third party who
knows the person named in the
arrest warrant. Even if the officers had a reasonable belief that
the suspect was in the house, that
belief was not “subjected to the detached scrutiny of a judicial
officer.” The privacy interests of
the homeowner superseded the authority of the police to enter
under these circumstances.
SEARCH INCIDENT TO ARREST
The police have the authority to conduct a warrantless search of
a person for weapons and evi-
dence whenever a person is lawfully arrested upon probable
cause for any crime. An arrest
always creates an exigency—the risk of injury to the officer and
the likelihood of destruction of
evidence. Under the warrant-preference construction of the
Fourth Amendment, the search inci-
dent to arrest is one of three well-accepted warrant exceptions;
the other two are entry into a
home in hot pursuit and automobile searches. Waiting for a
magistrate’s warrant to search a per-
son just arrested would indeed undermine legitimate law
enforcement interests.
The Scope of a Search Incident to Arrest
The question of the scope of a search incident to arrest proceeds

in two directions—toward
and away from the arrested person. First, how intrusive may a
lawful search of an arrestee’s body
and clothing be? Second, how far away from the suspect may a
search incident to arrest lawfully
extend?
The first part of the “scope” rule was clarified in United States
v. Robinson (1973). Officer
Jenks of the Washington, D.C., Police Department saw
Robinson driving an automobile and
knew that Robinson’s driver’s license had been revoked four
days earlier. Having reason to be-
lieve that Robinson was driving without a license, Jenks
stopped Robinson and cited him for
driving without a license. Under Washington, D.C., law, driving
without a license was a crime
for which a person could be brought into custody at a police
station. According to police depart-
ment procedures, Officer Jenks patted down Robinson’s
clothing. “He felt an object in the left
breast pocket of the heavy coat” Robinson was wearing, could
not tell what it was, and reached
into the pocket and pulled out a “crumpled up cigarette
package.” The officer opened it and
found fourteen gelatin capsules of heroin.
against mistaken insults to privacy decreed that only in the most
serious of cases could the warrant be
dispensed with. This balance is not recognized when the
common-law rule is unthinkingly transposed to
our present classifications of criminal offenses. Indeed, the only
clear lesson of history is contrary to the
one the Court draws: the common law considered the arrest
warrant far more important than today’s de-
cision leaves it.

* * * [T]he Court’s unblinking literalism cannot replace
analysis of the constitutional interests in-
volved. [m] While we can learn from the common law, the
ancient rule does not provide a simple an-
swer directly transferable to our system. Thus, in considering
the applicability of the common-law rule
to our present constitutional scheme, we must consider both of
the rule’s two opposing constructs: the
presumption favoring warrants, as well as the exception
allowing immediate arrests of the most danger-
ous criminals. The Court’s failure to do so, indeed its failure to
recognize any tension in the common-
law rule at all, drains all validity from its historical analysis.
* * *
[m] Does Justice Marshall’s analysis
better comport with the “originalist”
idea of adhering to the “intent of the
Framers”?
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192 Chapter 4
Writing for the Court, Justice Rehnquist distinguished between
the search that may be
made of the person and a search of the area under his control
following a lawful arrest, the
issue decided four years earlier in Chimel v. California (1969).
Unlike the area of control rule,
which had varied over time, courts have consistently upheld the
right of the police to thor-
oughly search a person incident to arrest in order to secure and
preserve evidence of crime and
“to disarm the suspect in order to take him into custody.” These
reasons are in force when a
police officer has probable cause and makes a custodial arrest.
When a person is taken into
custody, a Terry pat-down does not afford the officer sufficient
protection against weapons that
may be concealed and could be used during the transport to a
police station. The arrest
was considered proper, and the search was allowed under the
Fourth Amendment, making the
evidence admissible.

Four dissenting judges argued that an arrest for a traffic
violation does not raise suspicion of
drug possession and that the extent of the search must be
limited by the nature of the crime. The
majority, however, refused to limit the authority of the police in
such a manner. “A police officer’s
determination as to how and where to search the person of a
suspect whom he has arrested is nec-
essarily a quick ad hoc judgment which the Fourth Amendment
does not require to be broken
down in each instance into an analysis of each step in the
search. The authority to search the per-
son incident to a lawful custodial arrest, while based upon the
need to disarm and to discover evi-
dence, does not depend on what a court may later decide was
the probability in a particular arrest
situation that weapons or evidence would in fact be found upon
the person of the suspect.” The
Court thus created a bright-line rule: Police do not have to
weigh each arrest situation on the street
to guess whether this particular crime justifies a particular level
of search. The constitutional rule
is that the police may conduct a thorough search of the person
upon arrest, without having to ac-
count for whether the search was related to the crime or the
circumstances of the arrest.
The rule of Atwater v. City of Lago Vista (2001), discussed
earlier in this chapter, authoriz-
ing an officer to take a person into custody for a fine-only
offense, means that there is no longer
such a thing as a noncustodial arrest. There are two situations in
which a personal search is not au-
thorized after a person is seized by police. The first is a
temporary investigative stop made under

the authority of Terry v. Ohio (1967), which authorized only a
brief pat-down of the outer clothing
for weapons. The second situation came into play in Knowles v.
Iowa (1998). A police officer
stopped an automobile driver for speeding, issued the driver a
citation rather than arresting him,
and, with neither the driver’s consent nor probable cause,
conducted a full automobile search,
yielding a bag of marijuana and a “pot pipe.” Iowa statutes
allow either an officer to arrest a per-
son for a traffic offense and bring the person before a
magistrate or “the far more usual practice of
issuing a citation in lieu of arrest or in lieu of continued
custody after an initial arrest.” The
statutes also authorize officers to make a full-custody search of
a stopped car, even though a cita-
tion has been issued. The Supreme Court held that the search in
this case violated the Fourth
Amendment, even though authorized by state law. The two
rationales for the Robinson search in-
cident to arrest rule are not strongly supported here. “The threat
to officer safety from issuing a
traffic citation . . . is a good deal less than in the case of a
custodial arrest.” As for the second ra-
tionale: “Nor has Iowa shown the second justification for the
authority to search incident to ar-
rest—the need to discover and preserve evidence. Once Knowles
was stopped for speeding and is-
sued a citation, all the evidence necessary to prosecute that
offense had been obtained. No further
evidence of excessive speed was going to be found either on the
person of the offender or in the
passenger compartment of the car.” The Court also rejected
Iowa’s contention that a full-blown
search of the car might turn up evidence of another, undetected
crime.

Chimel v. California (1969) deals with the other “direction” of
the scope of a search inci-
dent to arrest: How far away from the arrested individual may
the search be conducted?
Although the right to conduct a warrantless search incident to
arrest has never been questioned,
the Supreme Court had, over a half-century period from 1914 to
1969, issued an inconsistent
string of rulings on the scope question. In Chimel, the Supreme
Court sought to finally resolve
the issue by handing down a clear statement concerning the
proper extent of boundaries of war-
rantless searches around the person following an arrest.
Read Case and Comments: Chimel v. California.
Following Chimel, the Supreme Court encountered difficulty in
establishing a workable
rule concerning searches incident to arrest that occurred in and
around automobiles that also
maintained some limits on law enforcement. These cases (New
York v. Belton, 1981; Robbins v.
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CASE AND COMMENTS
Chimel v. California
395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)
MR. JUSTICE STEWART delivered the opinion of the Court.
This case raises basic questions concerning the permissible
scope under the Fourth Amendment
of a search incident to a lawful arrest.
* * * Late [one] afternoon * * * three police officers arrived at
the * * * home of the petitioner
with a warrant authorizing his arrest for [a] burglary. * * * The
officers knocked on the door, identified
themselves to the petitioner’s wife, and asked if they might
come inside. She ushered them into the
house, where they waited 10 or 15 minutes until the petitioner

returned home from work. [a] When the
petitioner entered the house, one of the officers handed him the
arrest warrant and asked for permission
to “look around.” The petitioner objected, but was advised that
“on the basis of the lawful arrest,” the of-
ficers would nonetheless conduct a search. No search warrant
had been issued.
Accompanied by the petitioner’s wife, the officers then looked
through the entire three-bedroom
house, including the attic, the garage, and a small workshop. In
some rooms the search was relatively
cursory. In the master bedroom and sewing room, however, the
officers directed the petitioner’s wife to
open drawers and “to physically move contents of the drawers
from side to side so that [they] might
view any items that would have come from [the] burglary.” [b]
After completing the search, they seized
numerous items—primarily coins, but also several medals,
tokens, and a few other objects. The entire
search took between 45 minutes and an hour.
[Items seized during the search were admitted in evidence
against Chimel at a criminal trial.] * * *
[The Court assumed that the arrest was valid.] This brings us
directly to the question whether the
warrantless search of the petitioner’s entire house can be
constitutionally justified as incident to that ar-
rest. The decisions of this Court bearing upon that question
have been far from consistent, as even the
most cursory review makes evident.
[Dictum in Weeks v. United States (1914) referred in passing to
a well-known exception to the
warrant requirement: “to search the person of the accused when

legally arrested.”] That statement made
no reference to any right to search the place where an arrest
occurs. * * * Eleven years later the case of
Carroll v. United States (1925) brought the following
embellishment of the Weeks statement:
“When a man is legally arrested for an offense, whatever is
found upon his person or in his
control which it is unlawful for him to have and which may be
used to prove the offense
may be seized and held as evidence in the prosecution.” * * *
(Emphasis added.)
[Another 1925 case, Agnello v. United States, “still by way of
dictum” said:] [c]
“The right without a search warrant contemporaneously to
search persons lawfully arrested
while committing crime and to search the place where the arrest
is made in order to find
and seize things connected with the crime as its fruits or as the
means by which it was com-
mitted, as well as weapons and other things to effect an escape
from custody, is not to be
doubted.” * * *
And in Marron v. United States (1927), two years later, the
dictum of Agnello appeared to be the
foundation of the Court’s decision, [where agents with a search
warrant to seize liquor and a still also
seized a ledger. [d] The ledger was seized as incident to the
arrest of the illicit producers at the still.] The
Court upheld the seizure of the ledger by holding that since the
agents had made a lawful arrest, “[t]hey
had a right without a warrant contemporaneously to search the
place in order to find and seize the things

used to carry on the criminal enterprise.” * * *
That the Marron opinion did not mean all that it seemed to say
became evident, however, a few
years later in Go-Bart Importing Co. v. United States (1931),
and United States v. Lefkowitz (1932). * *
* [In these cases, the Supreme Court limited the Marron ruling
to situations where the things seized in-
cident to arrest “were visible and accessible and in the
offender’s immediate custody.”] * * * [I]n
Lefkowitz, * * * the Court held unlawful a search of desk
drawers and a cabinet despite the fact that the
search had accompanied a lawful arrest. * * * [e]
The limiting views expressed in Go-Bart and Lefkowitz were
thrown to the winds, however, in
Harris v. United States, decided in 1947. * * * [Harris] was
arrested [on an arrest warrant] in the living
room of his four-room apartment, and in an attempt to recover
two canceled checks thought to have been
used in effecting the forgery, the officers undertook a thorough
search of the entire apartment. Inside a
[e] If Lefkowitz or Go-Bart did not
explicitly overrule Marron, does this
inject uncertainty into the law? Or
does the most recent case control?
[d] Does the Marron decision appear
to authorize the search of an entire
house where an arrest is made?
[c] The words “in his control” and
“search the place” could logically
apply to the actions of the police in
Chimel’s house.

[b] A magistrate specifies the things
to be searched for in a search
warrant. By searching without a
warrant or under an arrest warrant,
does an officer potentially have a
greater scope for the search than if a
search warrant had been obtained?
[a] Why did the officers wait for
Chimel to return home before
searching the home? If Chimel’s
wife had refused them entry and they
arrested Chimel outside his house,
would a search of his house be just
as reasonable? Justified? Could they
have demanded entry under the
arrest warrant?
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desk drawer they found a sealed envelope marked “George
Harris, personal papers.” The envelope,
which was then torn open, was found to contain altered
Selective Service documents, and those docu-
ments were used to secure Harris’ conviction for violating the
Selective Training and Service Act of 1940.
The Court rejected Harris’ Fourth Amendment claim, sustaining
the search as “incident to arrest.” * * *
Only a year after Harris, however, the pendulum swung again.
In Trupiano v. United States,
[1948], [the Court invalidated the seizure of evidence at an
illegal distillery made without a search war-
rant but pursuant to arrests.] The opinion stated:
* * *
“A search or seizure without a warrant as an incident to a lawful
arrest has always been
considered to be a strictly limited right. It grows out of the
inherent necessities of the situ-
ation at the time of the arrest. But there must be something
more in the way of necessity
than merely a lawful arrest.” * * *

In 1950, two years after Trupiano, came United States v.
Rabinowitz, the decision upon which
California primarily relies in the case now before us. [f] In
Rabinowitz, federal authorities * * * [armed
with an arrest warrant, arrested the defendant] at his one-room
business office. At the time of the arrest,
the officers “searched the desk, safe, and file cabinets in the
office for about an hour and a half,” * * *
and seized 573 stamps with forged overprints. * * * The Court
held that the search in its entirety fell
within the principle giving law enforcement authorities “[t]he
right to search the place where the arrest
is made in order to find and seize things connected with the
crime.” * * * The test, said the Court, “is not
whether it is reasonable to procure a search warrant, but
whether the search was reasonable.” * * * [g]
* * * [The Rabinowitz] doctrine, however, at least in the broad
sense in which it was applied by
the California courts in this case, can withstand neither
historical nor rational analysis.
* * *
[The Court then noted that the line of cases supporting the
Rabinowitz rule was quite wavering.
Furthermore, the historic background of the Fourth Amendment
was the strongly felt abuses of general
warrants, hated by the American colonists, implying that] * * *
the general requirement that a search
warrant be obtained is not lightly to be dispensed with, and “the
burden is on those seeking [an] exemp-
tion [from the requirement] to show the need for it.” * * *
Only last Term in Terry v. Ohio (1968), we emphasized that
“the police must, whenever practica-

ble, obtain advance judicial approval of searches and seizures
through the warrant procedure,” * * * and
that “[t]he scope of [a] search must be ‘strictly tied to and
justified by’ the circumstances which rendered
its initiation permissible.” * * *
A similar analysis underlies the “search incident to arrest”
principle, and marks its proper extent.
When an arrest is made, it is reasonable for the arresting officer
to search the person arrested in order to
remove any weapons that the latter might seek to use in order to
resist arrest or effect his escape. [h]
Otherwise, the officer’s safety might well be endangered, and
the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person
in order to prevent its concealment or destruction. And the area
into which an arrestee might reach in
order to grab a weapon or evidentiary items must, of course, be
governed by a like rule. A gun on a table
or in a drawer in front of one who is arrested can be as
dangerous to the arresting officer as one con-
cealed in the clothing of the person arrested. [i] There is ample
justification, therefore, for a search of the
arrestee’s person and the area “within his immediate control”—
construing that phrase to mean the area
from within which he might gain possession of a weapon or
destructible evidence.
There is no comparable justification, however, for routinely
searching any room other than that in
which an arrest occurs—or, for that matter, for searching
through all the desk drawers or other closed or
concealed areas in that room itself. Such searches, in the
absence of well-recognized exceptions, may be
made only under the authority of a search warrant. The

“adherence to judicial processes” mandated by
the Fourth Amendment requires no less.
* * *
It is argued in the present case that it is “reasonable” to search a
man’s house when he is arrested
in it. But that argument is founded on little more than a
subjective view regarding the acceptability of
certain sorts of police conduct, and not on considerations
relevant to Fourth Amendment interests. [j]
Under such an unconfined analysis, Fourth Amendment
protection in this area would approach the evap-
oration point. It is not easy to explain why, for instance, it is
less subjectively “reasonable” to search a
man’s house when he is arrested on his front lawn—or just
down the street—than it is when he happens
to be in the house at the time of arrest. * * * Thus, although
“[t]he recurring questions of the reasonable-
ness of searches” depend upon “the facts and circumstances—
the total atmosphere of the case,” * * *
those facts and circumstances must be viewed in the light of
established Fourth Amendment principles.
* * *
[j] The Chimel case is evaluated
through the lens of the warrant-
preference construction of the Fourth
Amendment rather than the general-
reasonableness construction.
[i] The search of a closed drawer is
consistent with Lefkowitz (1932).
[h] The dual purposes of the search

incident to arrest of the person are
extended to the search of the
immediate area around the arrest.
The Court here states the operative
rule of Chimel.
[g] On a sheet of paper, trace the
zigzag of the Court’s rulings on the
scope of the search incident to arrest.
[f] Two of the most liberal justices,
Frank Murphy and Wiley Rutledge,
died in 1949 and were replaced by
more conservative justices, Tom
Clark and Sherman Minton.
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[The Court noted that the Rabinowitz rule creates the possibility
for “pretext” arrests, where the police
deliberately attempt to arrest a suspect at home so as to avoid
the necessity to obtain a search warrant,
especially where probable cause does not exist. Thus, in effect,
police could operate as if they had gen-
eral warrants.]
Rabinowitz and Harris have been the subject of critical
commentary for many years and have
been relied upon less and less in our own decisions. [k] It is
time, for the reasons we have stated, to hold
that on their own facts, and insofar as the principles they stand
for are inconsistent with those that we
have endorsed today, they are no longer to be followed.
Application of sound Fourth Amendment principles to the facts
of this case produces a clear
result. The search here went far beyond the petitioner’s person
and the area from within which he might
have obtained either a weapon or something that could have
been used as evidence against him. There
was no constitutional justification, in the absence of a search
warrant, for extending the search beyond
that area. The scope of the search was, therefore,
“unreasonable” under the Fourth and Fourteenth
Amendments, and the petitioner’s conviction cannot stand.

Reversed.
[Justice White dissented, joined by Justice Black. He argued
that the broad “search incident to
arrest” rule of Rabinowitz was correct because the searches
must adhere to a general rule of reasonable-
ness. In this case, the search was reasonable because the arrest
alerted Mrs. Chimel, and she would have
been in a position to get rid of incriminating evidence after the
police had left the house.]
[k] The Court here explicitly
overrules cases that allowed a broad
interpretation of the scope of a
search incident to arrest. This
clarifies the wavering line of prior
cases and seeks to put a definite end
to the Court’s “pendulum swings.”
California, 1981; Thornton v. United States, 2004; and Arizona
v. Gant, 2009) are examined in
the part of Chapter 5 dealing with automobile searches.
The Protective Sweep Exception
Maryland v. Buie (1990) established the protective sweep
warrant exception under the Fourth
Amendment. Justice White’s majority opinion defined a
protective sweep as “a quick and limit-
ed search of a premises, incident to an arrest and conducted to
protect the safety of police officers
or others. It is narrowly confined to a cursory visual inspection
of those places in which a person
might be hiding.” It can be thought of as a “frisk” of a house to
search for persons other than the

arrested person who might endanger the officers.
In Buie, two robbers, one wearing a red running suit, held up a
pizza parlor and fled. An
arrest warrant was obtained against Jerome Buie and his alleged
accomplice, Lloyd Allen. Buie’s
house was placed under surveillance. Two days later, the arrest
warrant was executed by seven of-
ficers who entered the house after verifying that Buie was
home. They knew that the robbery had
been committed by a pair of men and could not be sure that
Buie was alone in the house. Upon en-
tering, the officers “fanned out through the first and second
floors.” A corporal shouted down to
the basement, and Buie, hiding there, surrendered and “emerged
from the basement.” He was ar-
rested and handcuffed. A detective then entered the basement
“in case there was someone else
down there.” He spotted a red running suit lying on a stack of
clothes in plain view and seized it
as evidence. If the detective’s entry into the basement was an
improper intrusion on Buie’s expec-
tation of privacy, the running suit would be inadmissible as the
fruit of an illegal search.
The Court held the running suit admissible under the plain view
doctrine: The officer was
legitimately in the basement, although Buie had already been
arrested. The majority justified the
officer’s going into another part of the house on the basis of
police officer safety. When police
enter a house under an arrest warrant, in hot pursuit, or under a
valid exigency (as in Arizona v.
Hicks, 1987), they can go throughout the house looking for the
suspect in any likely places where
the suspect might reasonably hide. It is true that once the person

has been seized, the arrest war-
rant is executed or the exigency is at an end. At that point, the
underlying expectation of privacy
in the home comes into play.
However, Buie’s expectation of privacy in his home, once he
was arrested, did not im-
munize other rooms from entry after his arrest. The balancing
approach of Fourth Amendment
analysis of Terry v. Ohio shows a basic concern for officers’
safety by allowing them to frisk
potentially armed suspects. The protective sweep, similarly, is
designed to protect the arrest-
ing officers by allowing them “to take steps to assure
themselves that the house in which a
suspect is being or had just been arrested is not harboring other
persons who are dangerous
and who could unexpectedly launch an attack” (Maryland v.
Buie, 1990). The risk of danger
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in a home arrest is as great as, if not greater than, an on-the-
street or roadside investigatory
encounter:
A frisk occurs before a police-citizen confrontation has
escalated to the point of
arrest. A protective sweep, in contrast, occurs as an adjunct to
the serious step of
taking a person into custody for the purpose of prosecuting him
for a crime.
Moreover, unlike an encounter on the street or along a highway,
an in-home arrest
puts the officer at the disadvantage of being on his adversary’s
“turf.” An ambush in
a confined setting of unknown configuration is more to be
feared than it is in open,
more familiar surroundings. (Maryland v. Buie, 1990)
Once holding that a protective sweep was reasonable, the Court
had to determine the stan-
dard of evidence needed by police to go beyond the room in
which the person sought was arrest-
ed: (1) probable cause, (2) reasonable suspicion, or (3) no

evidence at all? In Buie, the prosecution
argued for position 3—that the police should be permitted to
conduct a protective sweep when-
ever they make an in-home arrest for a violent crime. The
Maryland courts and the U.S. Supreme
Court disagreed. The Maryland courts had ruled that for officers
to go beyond the place of arrest
in a home, they were required to have probable cause (position
1) to believe that other people
were present.
The Supreme Court instead created a two-part rule. First, “there
must be articulable facts
which, taken together with the rational inferences from those
facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an
individual posing a danger to
those on the arrest scene.” A protective sweep of the entire
house must be based on reasonable
suspicion. Second, however, the Court also held “that as an
incident to the arrest the officers
could, as a precautionary matter and without probable cause or
reasonable suspicion, look in
closets and other spaces immediately adjoining the place of
arrest from which an attack could be
immediately launched.” Thus the “sweep” of the entire house is
differentiated from a search of
the “adjoining space.”
Justice White emphasized that the protective sweep of an entire
house is limited only to
protecting the safety of arresting officers if justified by the
circumstances, may extend only to a
cursory inspection of those spaces where a person may be
found, and is limited to that period
necessary to dispel the reasonable suspicion of danger “and in

any event no longer than it takes
to complete the arrest and depart the premises.”
Justice Brennan, joined by Justice Marshall, dissented. He said
that the narrow Terry ex-
ception swallowed the general rule that searches are reasonable
only if based on probable cause.
He argued that the majority’s characterization of a protective
sweep as a “minimally intrusive”
search akin to a Terry frisk “markedly undervalues the nature
and scope of the privacy interests
involved.” As he saw it, a protective sweep was not far removed
from the full-blown search that
was disallowed in Chimel v. California:
A protective sweep would bring within police purview virtually
all personal posses-
sions within the house not hidden from view in a small enclosed
space. Police offi-
cers searching for potential ambushers might enter every room
including basements
and attics; open up closets, lockers, chests, wardrobes, and cars;
and peer under beds
and behind furniture. The officers will view letters, documents
and personal effects
that are on tables or desks or are visible inside open drawers;
books, records, tapes,
and pictures on shelves; and clothing, medicines, toiletries and
other paraphernalia
not carefully stored in dresser drawers or bathroom cupboards.
While perhaps not a
“full-blown” or “top-to-bottom” search, a protective sweep is
much closer to it than
to a “limited patdown for weapons.”
Searching at the Station House

INVENTORY SEARCH When an arrested person is brought to a
police lockup or a jail for book-
ing, it is standard practice for officers to inventory every item
of property that the arrestee has on
his or her person. In Illinois v. Lafayette (1983), Ralph
Lafayette was arrested for disturbing the
peace. He was taken to the Kankakee police station where, in
the process of booking him, a war-
rantless search of his shoulder bag, made for the purpose of
inventorying his possessions, turned
up amphetamine pills. The Illinois Appellate Court, ruling that
the privacy interest in an item of
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personal luggage like a shoulder bag during an inventory search
is greater than that in an auto-
mobile inventory search, suppressed the evidence of the drugs.
The U.S. Supreme Court reversed.
In the Court’s opinion, Chief Justice Burger ruled that because
an inventory search does
not rest on probable cause, the lack of a warrant is immaterial.
The inventory search constitutes
a well-defined exception to the warrant requirement: It “is not
an independent legal concept but
rather an incidental administrative step following arrest and
preceding incarceration” (emphasis
added). An inventory search of a jailed person’s backpack or
similar items is justified by balanc-
ing privacy interests in the bag versus the government’s
interests. The Court found that the
state’s interests outweighed those of the individual—the routine
inventorying of all items in a
person’s possession is therefore reasonable under the Fourth
Amendment. The Illinois Supreme
Court’s ruling was reversed, and the plain view seizure of the
amphetamines was upheld.
The governmental and individual interests that support the
conclusion that a station house
inventory search is reasonable include
• Protecting the arrestee’s property from theft by police

officers.
• Protecting police from false claims of theft by the arrestee.
(“A standardized procedure for
making a list or inventory as soon as reasonable after reaching
the station house not only
deters false claims but also inhibits theft or careless handling of
articles taken from the ar-
rested person.”)
• Accurately determining the identity of the arrested person.
• Ensuring the safety of everyone in jail. (“Dangerous
instrumentalities—such as razor
blades, bombs, or weapons—can be concealed in innocent-
looking articles taken from the
arrestee’s possession.”)
Chief Justice Burger stated that “[t[he governmental interests
underlying a stationhouse search
of the arrestee’s person and possessions may in some
circumstances be even greater than those
supporting a search immediately following arrest.” He
dismissed the suggestion of the Illinois
court that it was feasible in such situations to secure the
property of arrestees in secure lockers
and thus preserve their individual rights of privacy.
In dictum, the chief justice referred to whether or not a person
can be ordered to undress at
the station house: “Police conduct that would be impractical or
unreasonable—or embarrassingly
intrusive—on the street can more readily—and privately—be
performed at the station. For
example, the interests supporting a search incident to arrest
would hardly justify disrobing an

arrestee on the street, but the practical necessities of routine jail
administration may even justify
taking a prisoner’s clothes before confining him, although that
step would be rare.”
WARRANTLESS STATION HOUSE SEARCH FOR
EVIDENCE A locked footlocker that police
take into custody following an arrest, with probable cause to
believe it contains drugs, cannot be
opened by the police without having obtained a search warrant
(United States v. Chadwick,
1977). It constitutes an “effect” protected by the Warrant
Clause of the Fourth Amendment.
To the contrary, station house investigative seizures are allowed
where an exigency exists
that the suspect can destroy evidence. In United States v.
Edwards (1974), police had probable
cause to believe that the clothing worn by Edwards, who was
arrested and in a police lockup, con-
tained evidence of a crime—paint chips from the scene of a
burglary. The Court held that the
police could, without a warrant, require him to exchange his
clothing for other clothing, even ten
hours after his jailing. The time delay was reasonable because
the police waited until morning,
when a substitute set of clothing could be purchased. Edwards
fell within the search incident to
arrest exception and made clear that when a person is in a
police lockup or jail, the exigency that
supports the search incident to arrest (i.e., the destruction of
evidence) may continue for consider-
able periods of time. The exchange of clothing could also be
allowed at the time of an inventory.
A warrantless search was also upheld in Cupp v. Murphy

(1973). The search and seizure
consisted of police at a police station taking dry blood scrapings
from the finger of a man who
voluntarily appeared at a police station after the strangulation
death of his wife. When the police
noticed the stain and the man held his hands behind his back, an
exigency arose because he
might have destroyed evidence. Cupp is problematic because at
the time the blood was scraped
from the individual’s finger, there was no formal custodial
arrest. In that case, the police had only
reasonable suspicion that the man murdered his wife, but their
action was a very limited intru-
sion and the evidence was the kind that could be readily
destroyed. Under these circumstances,
the search and seizure were held to be constitutional.
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STRIP SEARCHES The Supreme Court has not decided whether
a strip search of a person held
in jail on a minor offense is reasonable. In Bell v. Wolfish
(1979), the Court upheld the body cav-
ity searches of pretrial detainees, who were held on serious
charges in federal jails that also
housed convicted prisoners, after every contact visit with a
person from outside the institution.
The practice was deemed necessary to discover and deter the
“smuggling of weapons, drugs, and
other contraband into the institution.” Strip searches under such
conditions were deemed reason-
able under the Fourth Amendment general reasonableness
construction. “A detention facility is a
unique place fraught with serious security dangers.”
On the other hand, federal and state courts have struck down
blanket strip search or body cav-
ity search regulations and practices as unreasonable for minor
crimes. An important early Seventh
Circuit Court of Appeals case, Mary Beth G. v. City of Chicago
(1983),14 described strip searches as
“demeaning, dehumanizing, undignified, humiliating, terrifying,
unpleasant, embarrassing, repul-
sive, signifying degradation and submission.” A Chicago policy
in force from 1952 to 1980 required

all female detainees to be subjected to strip searches, regardless
of the charges, while all male
detainees were patted down. In Mary Beth G., women were strip
searched after arrests for outstand-
ing parking tickets, failing to produce a driver’s license, and
disorderly conduct. Although these
were searches incident to arrest and the women were brought to
lockups, the circuit court applied the
balancing test to distinguish Bell v. Wolfish. These cases
differed because the plaintiffs “are minor
offenders who were not inherently dangerous and who were
being detained only briefly while await-
ing bond.” The Chicago strip searches bore an insubstantial
relationship to security needs and, when
balanced against the plaintiff’s privacy interests, could not be
considered reasonable.15
Despite such rulings, municipal police departments in many
places have continued to use strip
and body cavity searches in inappropriate situations and have
lost substantial lawsuits as a result.
Some departments have instituted regulations to utilize these
searches when reasonable. “Two states,
New Jersey and Tennessee, have passed statutes requiring a
search warrant or consent in order to
perform a visual body cavity search.” In neither state have
police departments complained that these
laws made their lockups unsafe.16 Yet, the inability of many
police departments to act on their own
initiative to institute reasonable policies has led not only to the
continuation of degrading practices,
but to the rise of a small, specialized group of lawyers who
litigate strip search cases. A study reports
that there have been “nearly a hundred jail strip-search class
actions, and there have been hundreds
more individual cases, both affirmative civil actions and

criminal cases in which criminal defendants
seek the suppression of evidence by attacking the strip-search
that led to its discovery.”17
An illustrative case is Stacey Hartline’s. She was 21 years old
in 2003 when stopped driving
her pick-up truck while running errands for her employer in the
Village of Southampton, New
York, at 9:30 a.m. She was stopped by Officer Anthony Gallo
because her truck was missing a
rear license plate. When she opened her door Gallo saw
marijuana plant stem on the floor and ar-
rested Stacey. She was strip searched at the police station
pursuant to department policies, by a fe-
male officer, which included a visual inspection of her orifices
and removing her upper garments
and lifting her bra. “Hartline was ‘crying hysterically’ during
this process.” When returned to the
female cell, Stacey noticed “a video camera trained on the area
in the cell in which she had been
strip searched. The camera appeared to her to be turned on.”
After booking Stacey was released.
“As she passed Gallo on her way out, she saw a television
monitor near him, showing a cell. She
asked him whether the cell shown on the monitor was the one
she had been in. He answered that
it was.” The misdemeanor marijuana charges were later
dismissed. Stacey brought a $1 million
lawsuit against Officer Gallo and the Southampton Police
Department. The case was dismissed by
a federal district court but reinstated in 2008 by the Second
Circuit Court of Appeals. That court
said that it was unreasonable for Officer Gallo to suspect that
Stacey was “illicitly concealing
drugs on her person” given the complete lack of facts that
typically point to drug crimes.18

STOP AND FRISK
This section explores the second major category of personal
seizure: the investigative stop.
Establishing the Constitutional Authority to Stop
Arrest law is rooted in common law cases going back hundreds
of years. Virtually no law exist-
ed regarding the temporary stopping of individuals by the police
in order to obtain information.
Organized police forces, however, exercised this power as a
matter of custom since their
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inception in the nineteenth century. In the 1960s, state statutes
and cases began to define the
so-called stop and frisk power. These laws generated
constitutional challenges that soon landed
on the Supreme Court’s doorstep. The basic rules were
formulated in Terry v. Ohio (1968).
Terry was handed down during an explosive moment in
American history—an extended
period of intense racial conflict that boiled over into hundreds
of inner-city riots between 1964
and 1972, reaching its highest pitch in the summers of 1967 and
1968. The immediate catalysts
of these riots often were episodes between largely all-white
police forces and mostly young male
African Americans who felt that the promises of the civil rights
movement were not being ful-
filled.19 Given the overheated political climate of 1968, some
commentators suggest that the lib-
eral Warren Court justices voted to extend the powers of the
police in part as a way of mollifying
the bitter attacks on the Court by the police establishment and
by many conservatives in
Congress following the 1966 decision in Miranda v. Arizona.20
Journalist Fred Graham, in this
skeptical vein, noted that “[t]he Supreme Court has never
conceded that it intentionally compen-
sates for a tough decision on one point by handing down a soft

ruling on another, but its actions
occasionally give that impression.”21 Thus, within two years
after Miranda, the Court upheld the
use of informers and electronic eavesdropping, dropped the
mere evidence restriction on search-
es, and authorized stop and frisk on less than probable cause.
This does not prove that the Court
acted from narrow political motives, but it does fuel speculation
that the Supreme Court’s deci-
sions are not entirely divorced from major national events.
Read Case and Comments: Terry v. Ohio.
TERRY AND VAGRANCY LAWS: CLOSING A LEGAL
LOOPHOLE While Terry can be viewed as
a conservative turn for the decidedly liberal Warren Court,
several years later, in Papachristou v.
City of Jacksonville (1972), the more conservative Burger Court
took a “liberal” stance in restrict-
ing the use of overly broad or vague vagrancy statutes. These
laws had for centuries given police
in England and the United States a “cover” to stop and question
individuals who merely appeared
suspicious but against whom no probable cause to arrest
existed.22 Vagrancy laws were used not
only to question those suspected of a crime but also to control
and harass social deviants and the
poor. A destructive aspect of these laws was their use as
“cover” charges: A police officer ensured
against a lawsuit for false arrest by charging a person stopped
with “vagrancy.” The Supreme
Court, by openly recognizing the field-interrogation power of
the police in Terry, and by shutting
down the abusive extremes of overly broad vagrancy laws in
Papachristou, eliminated a source of
hypocrisy in police work and in theory brought this area of

police activity under judicial scrutiny.
After Papachristou, the states could continue to rely on loitering
laws but tended to nar-
rowly tailor them to specifically target disruptive behavior,
such as prowling around homes,
streetwalking prostitution, and conducting on-the-street drug
sales. These laws provided very de-
tailed definitions of loitering. The change worked by
Papachristou was that now citizens could
turn to the courts to determine if such specifically targeted laws
met due process criteria.
The Supreme Court has applied the stop and frisk doctrine in a
variety of cases in the years
following Terry. While some cases have limited the power of
police officers to stop, most have
expanded the investigative stop doctrine beyond a strict reading
of Terry. Most commentators
believe that a rough balance between police rights and
individual rights established during the
Burger Court years has given way to a legal regime that
decidedly favors police in the Rehnquist
Court. The mostly Republican-appointed Court has been
charged with creating a “drug excep-
tion” to the Fourth Amendment linked to the nation’s “war on
drugs.”23
In the cases that follow in this chapter, the Court often has had
to determine whether police
action constituted an arrest, a Terry stop, or a consensual
encounter, and if a seizure occurred,
whether the seizure was justified by probable cause or
reasonable suspicion. Instead of organiz-
ing the cases in a purely chronological fashion, they are
presented, somewhat artificially, by the

source of reasonable suspicion and the place in which the stop
occurs.
The Sources of Reasonable Suspicion
FRISKING FOR A WEAPON Terry was ambiguous about
whether a frisk of a person for
weapons had to be preceded by reasonable suspicion that the
person was about to commit or in
the process of committing a crime. The Court held, in Arizona
v. Johnson (2009), “that, in a
traffic-stop setting, the first Terry condition—a lawful
investigatory stop—is met whenever it
is lawful for police to detain an automobile and its occupants
pending inquiry into a vehicular
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CASE AND COMMENTS
Terry v. Ohio
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
MR. CHIEF JUSTICE WARREN delivered the opinion of the
Court.
This case presents serious questions concerning the role of the
Fourth Amendment in the con-
frontation on the street between the citizen and the policeman
investigating suspicious circumstances.
Petitioner Terry was convicted of carrying a concealed weapon.
* * * Officer McFadden testified
that while he was patrolling in plain clothes in downtown
Cleveland [one] afternoon * * * his attention
was attracted by two men, Chilton and Terry, standing on the
corner of Huron Road and Euclid Avenue.
* * * [H]e was unable to say precisely what first drew his eye to
them. However, he testified that he had
been a policeman for thirty-nine years. * * * [H]e had
developed routine habits of observation over the
years[;] * * * he would “stand and watch people or walk and
watch people at many intervals of the day.”
[a] He added: “Now, in this case when I looked over they didn’t

look right to me at the time.”
* * * [Officer McFadden saw them pace up and down the block
five or six times each, pausing
frequently to look into the window of a jewelry store and to
confer.] After this had gone on for 10 to
12 minutes, the two men walked off together [following a
third]. * * *
* * * He testified that * * * he suspected the two men of “casing
a job, a stick-up,” and that he
considered it his duty as a police officer to investigate further.
He added that he feared “they may have a
gun.” [b] * * * Deciding that the situation was ripe for direct
action, Officer McFadden approached the
three men, identified himself as a police officer and asked for
their names. At this point his knowledge
was confined to what he had observed. * * * When the men
“mumbled something” in response to his in-
quiries, Officer McFadden grabbed petitioner Terry, spun him
around * * * and patted down the outside
of his clothing. In the left breast pocket of Terry’s overcoat
Officer McFadden felt a pistol. * * * At this
point, * * * the officer ordered all three men to enter Zucker’s
store. As they went in, he removed Terry’s
overcoat completely [and] removed a. 38-caliber revolver from
the pocket. * * * [Pat-downs of Chilton
and Katz produced a gun on Chilton but not on Katz.] The
officer testified that he only patted the men
down to see whether they had weapons, and that he did not put
his hands beneath the outer garments of
either Terry or Chilton until he felt their guns.
* * *
I

* * * Unquestionably petitioner was entitled to the protection of
the Fourth Amendment as he walked
down the street in Cleveland. * * * 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.
* * * [T]his question thrusts to the fore difficult and
troublesome issues regarding a sensitive area
of police activity[:] * * * the power of the police to “stop and
frisk”—as it is sometimes euphemistically
termed—suspicious persons.
* * *
[The police claim that they need authority to deal with street
encounters and that the brief detention
of a “stop and frisk” not amounting to arrest should not be
governed by the Fourth Amendment. It is a
petty indignity. [c] The defendant argues that unless the police
have probable cause to arrest, they have no
power under the Fourth Amendment to forcibly detain a person
temporarily or to frisk him or her.]
In this context we approach the issues in this case mindful of
the limitations of the judicial func-
tion in controlling the myriad daily situations in which
policemen and citizens confront each other on
the street. * * *
* * * [I]n some contexts the [exclusionary] rule is ineffective as
a deterrent [to police miscon-
duct]. Street encounters between citizens and police officers are
incredibly rich in diversity. They range
from wholly friendly exchanges of pleasantries or mutually
useful information to hostile confrontations

of armed men involving arrests, or injuries, or loss of life.
Moreover, hostile confrontations are not all of
a piece. Some of them begin in a friendly enough manner, only
to take a different turn upon the injection
of some unexpected element into the conversation. Encounters
are initiated by the police for a wide va-
riety of purposes, some of which are wholly unrelated to a
desire to prosecute for crime. [d] Doubtless
some police “field interrogation” conduct violates the Fourth
Amendment. But a stern refusal by this
Court to condone such activity does not necessarily render it
responsive to the exclusionary rule.
Regardless of how effective the rule may be where obtaining
convictions is an important objective of the
police, it is powerless to deter invasions of constitutionally
guaranteed rights where the police either
have no interest in prosecuting or are willing to forgo
successful prosecution in the interest of serving
some other goal.
[c] The police are asking that their
forcible stops of persons never be
subject to court review unless they
make an arrest. Terry argues that the
police should have no right to stop
him without probable cause.
[b] Is Officer McFadden’s suspicion
based on facts? Are they reasonable?
Does probable cause exist to arrest
these men on the basis of what he
saw? For what crime?
[a] The case does not indicate that
Terry and Chilton were African
Americans and the third who joined

them, Katz, was a white male.
Should this be suspicious?
[d] The Court admits that bringing
the stop and frisk power within the
Constitution will not enable courts to
supervise instances of police
misconduct where the stop does not
result in an arrest and the person is
simply let go.
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* * * The wholesale harassment by certain elements of the
police community, of which minority
groups, particularly Negroes, frequently complain, will not be
stopped by the exclusion of any evidence
from any criminal trial. * * * [e] Nothing we say today is to be
taken as indicating approval of police
conduct outside the legitimate investigative sphere. Under our
decision, courts still retain their tradition-
al responsibility to guard against police conduct which is
overbearing or harassing, or which trenches
upon personal security without the objective evidentiary
justification which the Constitution requires.
When such conduct is identified, it must be condemned by the
judiciary and its fruits must be excluded
from evidence in criminal trials. * * *
* * * [W]e turn our attention to the quite narrow question posed
by the facts before us: whether it
is always unreasonable for a policeman to seize a person and
subject him to a limited search for weapons
unless there is probable cause for an arrest. * * *
II
Our first task is to establish at what point in this encounter the
Fourth Amendment becomes relevant.
That is, we must decide whether and when Officer McFadden
“seized” Terry and whether and when he
conducted a “search.” * * * 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 tor-
ture 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.” * * * It is a serious
intrusion upon the sanctity of the person. * * * [f]
* * * This Court has held in the past that a search which is
reasonable at its inception may violate
the Fourth Amendment by virtue of its intolerable intensity and
scope. * * * The scope of the search
must be “strictly tied to and justified by” the circumstances
which render its initiation permissible. * * *
* * * We therefore reject the notions that the Fourth
Amendment does not come into play at all as
a limitation upon police conduct if the officers stop short of
something called a “technical arrest” or a
“full-blown search.”
[The next question is whether this seizure and search were
unreasonable—that is, whether the
officer’s action was justified at its inception and whether it was
reasonably related in scope to the
circumstances that justified the interference in the first place.]
III
* * * [W]e deal here with an entire rubric of police conduct—
necessarily swift action predicated upon the
on-the-spot observations of the officer on the beat—which
historically has not been, and as a practical mat-
ter could not be, subjected to the warrant procedure. [g] Instead,
the conduct involved in this case must be
tested by the Fourth Amendment’s general proscription against
unreasonable searches and seizures.
Nonetheless, the notions which underlie both the warrant
procedure and the requirement of prob-

able cause remain fully relevant in this context. * * * [h] [I]n
justifying the particular intrusion the
police officer must be able to point to specific and articulable
facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.
The scheme of the Fourth Amendment
becomes meaningful only when it is assured that at some point
the conduct of those charged with en-
forcing the laws can be subjected to the more detached, neutral
scrutiny of a judge who must evaluate
the reasonableness of a particular search or seizure in light of
the particular circumstances. [i] And in
making that assessment it is imperative that the facts be judged
against an objective standard: would the
facts available to the officer at the moment of the seizure or the
search “warrant a man of reasonable
caution in the belief” that the action taken was appropriate? * *
* Anything less would invite intrusions
upon constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches, a
result this Court has consistently refused to sanction. * * * And
simple “‘good faith on the part of the
arresting officer is not enough.’ * * * If subjective good faith
alone were the test, the protections of the
Fourth Amendment would evaporate, and the people would be
‘secure in their persons, houses, papers,
and effects,’ only in the discretion of the police.” * * *
[The Court noted that the police have an interest to prevent and
detect crime that necessitates
temporary stops of individuals to inquire into suspicious
circumstances.]
The crux of this case, however, is not the propriety of Officer
McFadden’s taking steps to inves-
tigate petitioner’s suspicious behavior, but rather, whether there

was justification for McFadden’s inva-
sion of Terry’s personal security by searching him for weapons
in the course of that investigation. [j] *
* * Certainly it would be unreasonable to require that police
officers take unnecessary risks in the
performance of their duties. American criminals have a long
tradition of armed violence, and every year
in this country many law enforcement officers are killed in the
line of duty. * * *
In view of these facts, we cannot blind ourselves to the need for
law enforcement officers to pro-
tect themselves and other prospective victims of violence in
situations where they may lack probable
cause for an arrest. * * *
[j] The Court turns its attention to
the frisk and devotes more attention
to this subject than to the stop.
[i] Here the Court provides a
standard closer to traditional
probable cause. Note that this
paragraph does not use the words
“reasonable suspicion,” although
later cases concluded that this lower
standard is the rule.
[h] What is an “articulable fact”?
It seems to be any reason other than
a hunch. This suggests a lower
standard than probable cause, which
is defined as facts that would lead a
prudent person to conclude that a
crime is occurring or has occurred.

[g] Terry here solidifies the general-
reasonableness construction of the
Fourth Amendment.
[f] Thus by stopping and frisking
Terry, Officer McFadden seized and
searched him. Note that the frisk is
defined as a limited search for one
purpose only.
[e] The Court signals its awareness
and condemnation of widespread
police misconduct and racism, which
were rampant in that era.
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We must still consider, however, the nature and quality of the
intrusion on individual rights which
must be accepted if police officers are to be conceded the right
to search for weapons in situations where
probable cause to arrest for crime is lacking. Even a limited
search of the outer clothing for weapons
constitutes a severe, though brief, intrusion upon cherished
personal security, and it must surely be an
annoying, frightening, and perhaps humiliating experience. [k]
Petitioner contends that such an intru-
sion is permissible only incident to a lawful arrest, either for a
crime involving the possession of
weapons or for a crime the commission of which led the officer
to investigate in the first place.
However, this argument must be closely examined.
* * * [Terry] says it is unreasonable for the policeman to
[disarm a suspect] until such time as the
situation evolves to a point where there is probable cause to
make an arrest. When that point has been
reached, petitioner would concede the officer’s right to conduct
a search of the suspect for weapons,
fruits or instrumentalities of the crime, or “mere” evidence,
incident to the arrest.
There are two weaknesses in this line of reasoning, however.
First, it fails to take account of tra-
ditional limitations upon the scope of searches, and thus

recognizes no distinction in purpose, character,
and extent between a search incident to an arrest and a limited
search for weapons. [l] The former,
although justified in part by the acknowledged necessity to
protect the arresting officer from assault with
a concealed weapon, * * * is also justified on other grounds,
and can therefore involve a relatively
extensive exploration of the person. A search for weapons in the
absence of probable cause to arrest,
however, must, like any other search, be strictly circumscribed
by the exigencies which justify its initia-
tion. * * * Thus it must be limited to that which is necessary for
the discovery of weapons which might
be used to harm the officer or others nearby, and may
realistically be characterized as something less
than a “full” search. * * *
* * * [Second,] [a]n arrest is a wholly different kind of
intrusion upon individual freedom from a
limited search for weapons, and the interests each is designed to
serve are likewise quite different. An
arrest is the initial stage of a criminal prosecution. It is
intended to vindicate society’s interest in having
its laws obeyed, and it is inevitably accompanied by future
interference with the individual’s freedom of
movement, whether or not trial or conviction ultimately follows.
[m] The protective search for weapons,
on the other hand, constitutes a brief, though far from
inconsiderable, intrusion upon the sanctity of the
person. It does not follow that because an officer may lawfully
arrest a person only when he is apprised of
facts sufficient to warrant a belief that the person has
committed or is committing a crime, the officer is
equally unjustified, absent that kind of evidence, in making any
intrusions short of an arrest. Moreover, a
perfectly reasonable apprehension of danger may arise long

before the officer is possessed of adequate
information to justify taking a person into custody for the
purpose of prosecuting him for a crime. * * *
IV
* * * We think * * * a reasonably prudent man would have been
warranted in believing petitioner was
armed and thus presented a threat to the officer’s safety while
he was investigating his suspicious behav-
ior. * * * [n] We cannot say [Officer McFadden’s] decision at
that point to seize Terry and pat his cloth-
ing for weapons was the product of a volatile or inventive
imagination, or was undertaken simply as an
act of harassment; the record evidences the tempered act of a
policeman who in the course of an inves-
tigation had to make a quick decision as to how to protect
himself and others from possible danger, and
took limited steps to do so.
* * *
* * * [o] 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.
* * *
V
* * * We merely hold today [p] that where a police officer
observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons
with whom he is dealing may be armed and presently dangerous,

where in the course of investigating
this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in
the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, he is
entitled for the protection of himself and others in the area to
conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth
Amendment, and any weapons seized may prop-
erly be introduced in evidence against the person from whom
they were taken.
Affirmed.
MR. JUSTICE HARLAN, concurring.
* * *
[o] The Court reemphasizes the
limited scope of the frisk.
[n] The general rules laid down in
the case are applied to the specific
facts. The Court concludes that
Terry’s seizure was based on more
than a hunch.
[m] The Court slips back to
explaining and justifying a stop and
compares it to a full custody arrest.
This analysis of the stop is
interleaved with that of the frisk,
making it difficult to untangle the
two issues.

[l] The Court draws a fairly clear
distinction between a full search
after arrest and a limited frisk (pat-
down) after or accompanying a stop.
[k] In this case, Officer McFadden
placed his hands on Terry’s coat (the
frisk) simultaneously with the stop.
He did not have probable cause to
believe Terry was armed. Terry was
arrested after the frisk disclosed a
gun. Thus the case facts do not fit the
rules of a search incident to arrest.
[p] This paragraph summarizes the
case.
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* * * [I]f the frisk is justified in order to protect the officer
during an encounter with a citizen, the
officer must first have constitutional grounds to insist on an
encounter, to make a forcible stop. * * *
I would make it perfectly clear that the right to frisk in this case
depends upon the reasonableness of a
forcible stop to investigate a suspected crime. [q]
Where such a stop is reasonable, however, the right to frisk
must be immediate and automatic if
the reason for the stop is, as here, an articulable suspicion of a
crime of violence. Just as a full search
incident to a lawful arrest requires no additional justification, a
limited frisk incident to a lawful stop
must often be rapid and routine. There is no reason why an
officer, rightfully but forcibly confronting a
person suspected of a serious crime, should have to ask one
question and take the risk that the answer
might be a bullet. * * *
* * *
MR. JUSTICE DOUGLAS, dissenting.
I agree that petitioner was “seized” within the meaning of the
Fourth Amendment. I also agree
that frisking petitioner and his companions for guns was a

“search.” But it is a mystery how that
“search” and that “seizure” can be constitutional by Fourth
Amendment standards, unless there was
“probable cause” to believe that (1) a crime had been committed
or (2) a crime was in the process of
being committed or (3) a crime was about to be committed. [r]
* * * If loitering were in issue and that was the offense charged,
there would be “probable cause”
shown. But the crime here is carrying concealed weapons; and
there is no basis for concluding that the
officer had “probable cause” for believing that that crime was
being committed. * * * [A] magistrate
would, therefore, have been unauthorized to issue [a warrant],
for he can act only if there is a showing
of “probable cause.” We hold today that the police have greater
authority to make a “seizure” and con-
duct a “search” than a judge has to authorize such action. We
have said precisely the opposite over and
over again. [s]
* * *
To give the police greater power than a magistrate is to take a
long step down the totalitarian path.
Perhaps such a step is desirable to cope with modern forms of
lawlessness. But if it is taken, it should be
the deliberate choice of the people through a constitutional
amendment. * * *
* * *
[r] Justice Douglas, perhaps the most
liberal member of the Warren Court,
here combines a liberal policy result
with a nonactivist position of

adhering to established rules of law.
[q] Justice Harlan’s point is that
officers need have no additional
reasonable suspicion to believe that
the person stopped is armed; a legal
frisk is justified solely by the legality
of the stop. As with his concurrence
in Katz, Justice Harlan’s point
came to be accepted as part of the
Terry rule.
[s] By putting his point this way,
Justice Douglas created a startling and
appalling conclusion—that the Court
gave police greater power than judges
over the liberty of citizens. Was this
the first step toward a police state?
violation. The police need not have, in addition, cause to
believe any occupant of the vehicle is in-
volved in criminal activity. To justify a patdown of the driver or
a passenger during a traffic stop,
however, just as in the case of a pedestrian reasonably
suspected of criminal activity, the police
must harbor reasonable suspicion that the person subjected to
the frisk is armed and dangerous.”
In this case, Tucson gang task force officers on patrol in a Crips
gang neighborhood
stopped a vehicle with three occupants whose registration had
been suspended, a civil infraction
warranting a citation. There was no reason to suspect anyone in
the vehicle of criminal activity.
While the two other officers dealt with the driver and front seat
passenger, Officer Maria Trevizo

noticed that passenger Lemon Johnson looked back at the
officers and was wearing clothing con-
sistent with Crips membership. He also had a scanner in his
jacket pocket, which was unusual
and cause for concern because most people would not carry a
scanner that way unless they were
going to commit a crime or were going to evade the police by
listening to the scanner. Trevizo
questioned Johnson and learned that he lived in a Crips gang
neighborhood, had served time in
prison for burglary, and had been out for about a year.
Wanting to question Johnson away from the passenger to gain
gang intelligence, Treviso
asked him to get out of the car. Johnson complied. Based on her
observations and Johnson’s answers
to her questions while he was still seated in the car, Trevizo
suspected that he might have a weapon
on him. She therefore patted him down “for officer safety” as
soon as he exited the car. A gun was
retrieved. Under the rule stated earlier, the Terry frisk was
proper and the gun was lawfully admitted
into evidence. The Johnson ruling clarified the authority of
police to conduct a frisk under Terry.
HEARSAY At first, it seemed that the novel Terry rule,
allowing a Fourth Amendment seizure
on less than probable cause (on “reasonable suspicion”), had to
be based on the personal obser-
vations of an experienced police officer. Terry stated: “[I]n
determining whether the officer acted
reasonably in such circumstances, due weight must be given,
not to his inchoate and unparticu-
larized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to
draw from the facts in light of his experience.” Nevertheless,

the Court soon established that rea-
sonable suspicion can be based upon reliable hearsay.
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In Adams v. Williams (1972), a person known to Police
Sergeant Connolly approached him at
2:15 a.m. in a high-crime area and told him that an individual in
a nearby car was carrying narcotics

and had a gun at his waist. Sergeant Connolly approached the
car, tapped on the driver’s window, and
asked the occupant to open the door. Williams, who was alone
in the car, rolled down the window in-
stead, and the officer reached in and seized a loaded gun from
Williams’s waistband. Based on the
discovery of the gun, Connolly arrested Williams for illegal
possession of a weapon, searched him,
and discovered drugs that were admitted into evidence. Unlike
Officer McFadden in Terry, who per-
sonally saw suspicious behavior, Sergeant Connolly did not
personally see the gun or corroborate this
fact before simultaneously stopping and frisking (i.e., searching
and seizing) Williams. The Court ex-
pressly ruled that reliable hearsay may be the basis of an
officer’s investigative stop, which occurred
when Sergeant Connolly tapped on the window and demanded
that the occupant step out.
Adams v. Williams also extended the Terry ruling in another
way. It extended the stop and
frisk authority to crimes of possession. Some felt Terry should
be limited to violent crimes or
thefts. This extension has made stop and frisk a potent tool in
the “war on drugs” and has also
been at the center of the bitter controversy over racial profiling.
(See the “Law in Society” section
in Chapter 5.) Adams predicted the rule that was clarified and
confirmed in Arizona v. Johnson
(2009), that a frisk need not be supported by independent
reasonable suspicion to stop if an officer
has reasonable suspicion that a person who is otherwise stopped
is armed.
ANONYMOUS TIPS The Court in Adams noted that “[t]his is a
stronger case than obtains in the

case of an anonymous telephone tip.” Such a situation was
resolved by the Court in Alabama v.
White (1990). At 3 p.m., Montgomery police received “a
telephone call from an anonymous per-
son, stating that Vanessa White would be leaving 235-C
Lynwood Terrace Apartments at a par-
ticular time in a brown Plymouth station wagon with the right
taillight lens broken and that she
would be going to Dobey’s Motel and would be in possession of
about an ounce of cocaine in-
side a brown attaché case.” The police did not know Vanessa
White or what she looked like, but
they corroborated most of the facts (White was not carrying an
attaché case) and stopped White
in her car shortly before she reached Dobey’s Motel. The
officers told her she was stopped be-
cause she was suspected of carrying cocaine; they obtained
consent to look into a locked, brown
attaché case that was in the car. They found drugs in the attaché
case.
The Supreme Court held (6–3) that “the tip, as corroborated by
independent police work,
exhibited sufficient indicia of reliability to provide reasonable
suspicion to make the investigato-
ry stop.” The decision was assisted to some extent by the ruling
of Illinois v. Gates (see Chapter
3), in which the Court approved a “totality of circumstances”
approach to determining whether
an anonymous informant who supplied probable cause for a
search warrant was reliable and
truthful and had a basis of knowledge. In White, the Court
applied this approach to find that the
totality of circumstances apparently indicated that the informant
was so familiar with Vanessa
White’s movements as to be reliable and truthful and have a

basis of knowledge. In the course of
its opinion, the Court made an important distinction between
probable cause and reasonable sus-
picion. Reasonable suspicion not only is a lesser quantum of
proof, but it is also less reliable.
“[R]easonable suspicion can arise from information that is less
reliable than that required to
show probable cause.” This language gives police greater
leeway to stop individuals, without
great concern that the information supplied is unreliable, than to
search.
Justice Stevens, dissenting, saw these facts differently. “An
anonymous neighbor’s predic-
tion 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.” He suggested that White
may have been a room clerk at the motel and offered a much
more troubling suggestion—that in
cases like this, the tipster could be another police officer who
has a “hunch” about a person. This
is not mere surmise, but it is a technique used by corrupt police,
as noted in a book on the subject:
There happened to be money missing on a job they went on, and
the guy who lost the
money came into the precinct bitching. It was a set-up job. It
wasn’t a real radio run.
They [the police] had dropped a dime on the guy. They had
called 911 themselves
and then responded to the bogus call to get inside the
building.24
The Supreme Court has limited the acceptability of anonymous
information that present-

ed only general information. In Florida v. J. L. (2000), an
anonymous caller reported to the
Miami-Dade police that a young black male standing at a
particular bus stop and wearing a plaid
shirt was carrying a gun. Officers went to the bus stop and saw
three black males, one of whom,
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respondent J. L., was wearing a plaid shirt. Apart from the tip,
the officers had no reason to sus-
pect any of the three of illegal conduct. The officers did not see
a firearm or observe any unusu-
al movements. One of the officers frisked J. L. and seized a gun
from his pocket. J. L., who was
then almost sixteen years of age, was charged under state law
with carrying a concealed firearm
without a license and possessing a firearm while under the age
of eighteen. In its unanimous
opinion, the Court distinguished Alabama v. White by noting
that although the tip itself in White
did not amount to reasonable suspicion, once “police
observation showed that the informant had
accurately predicted the woman’s movements, . . . it become
reasonable to think the tipster had
inside knowledge about the suspect and therefore to credit his
assertion about the cocaine”
(Florida v. J. L., 2000). Justice Ginsburg, in her opinion, called
White a “borderline” decision:
The tip in the instant case lacked the moderate indicia of
reliability present in White
and essential to the Court’s decision in that case. The
anonymous call concerning
J. L. provided no predictive information and therefore left the
police without means
to test the informant’s knowledge or credibility. That the
allegation about the gun
turned out to be correct does not suggest that the officers, prior
to the frisks, had a
reasonable basis for suspecting J. L. of engaging in unlawful
conduct. The reason-
ableness of official suspicion must be measured by what the
officers knew before
they conducted their search. All the police had to go on in this

case was the bare
report of an unknown, unaccountable informant who neither
explained how he knew
about the gun nor supplied any basis for believing he had inside
information about
J. L. If White was a close case on the reliability of anonymous
tips, this one surely
falls on the other side of the line. (Florida v. J. L., 2000)
POLICE BULLETIN The Terry basis of reasonable suspicion
was also expanded in United States
v. Hensley (1985). Hensley ruled that police may stop a suspect
based on information contained
in a flyer or bulletin they receive from another law enforcement
department. If the flyer has been
issued on the basis of articulable facts supporting a reasonable
suspicion that the wanted person
has committed an offense (rather than probable cause), then it
justifies a stop to check identifica-
tion, to pose questions to the person, or to detain the person
briefly while attempting to obtain
further information. Hensley therefore held that stops not only
may be made to prevent a future
crime or to stop ongoing offenses, as was the case in Terry, but
also may be used to inquire about
past criminal acts. Justice O’Connor maintained that although
the crime prevention rationale and
the exigency present in Terry did not exist in Hensley, the
ability to stop a suspect for questions
based on reasonable suspicion promotes the government interest
of solving crime and prevents
the chance that a suspect might flee.
Terry on the Streets
Several post-Terry cases held that police stopped individuals

without reasonable suspicion, vio-
lating their liberty rights. Sibron v. New York (1968) was a
companion case to Terry. An NYPD
patrol officer saw Sibron “hanging around” a street corner for
many hours in the late afternoon
and evening in a place where drug sales were believed to occur,
talking to known drug addicts.
Sibron went into a diner and, as he was eating pie and drinking
coffee, was ordered outside by
the officer. The officer had seen no evidence of a drug sale, but
he approached Sibron, said “You
know what I’m after,” reached into Sibron’s pocket, and found a
packet of heroin. The Court
held that this seizure was not based on reasonable suspicion and
therefore was an unreasonable
and unconstitutional stop. There were no articulable objective
facts to establish drug dealing or
possession. The officer clearly was not “frisking” Sibron for a
weapon but simply searching for
drugs. The drugs were suppressed as the product of an illegal
search and seizure. Sibron illus-
trates the line between legal and illegal stops.
IDENTIFICATION AND LOITERING LAWS General loitering
statutes must adhere to Terry
boundaries. The Supreme Court has held that statutes giving
police the power to obtain the iden-
tification of people walking in public are not valid in the
absence of reasonable suspicion to
effect a stop. In Brown v. Texas (1979), an officer in a high-
crime area in El Paso saw Brown and
a man in an alley around noon. The officer testified that the
situation “looked suspicious, but he
was unable to point to any facts supporting that conclusion.
There is no indication in the record

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that it was unusual for people to be in the alley.” Brown angrily
refused to give identification
when asked. He was arrested, jailed, convicted, and fined $20
for violating a Texas statute mak-
ing it a crime for a person to intentionally refuse to report his
name and address to a police offi-
cer who has lawfully stopped the person and requested such

information. The Court ruled that
the application of the statute violated the Fourth Amendment
because the police had no grounds
for stopping Brown in the first place. The mere fact that the
area was frequented by drug users
was not reasonable suspicion to stop him.
The Court went a step beyond Brown v. Texas in favoring
individual liberty in Kolender v.
Lawson (1983), holding that a California statute violated due
process. The statute required those
who “loiter or wander on the streets” to identify themselves and
account for their presence when
asked to do so by a peace officer. Edward Lawson, an African-
American business consultant in
his mid-thirties who wore his hair in dreadlocks was detained or
arrested under this statute, while
walking in residential neighborhoods in San Diego, on
approximately fifteen occasions between
March 1975 and January 1977. After being prosecuted twice and
convicted once he brought a
civil suit to have the law declared unconstitutional. California
courts limited the application of
the statute only to instances where a police officer “has
reasonable suspicion of criminal activity
sufficient to justify a Terry detention.”
The Supreme Court ruled that even as construed, the statute still
violated the Fourteenth
Amendment because it was “void for vagueness.” This doctrine
states that a law violates due
process if it is not sufficiently definite, so that ordinary people
are unable to understand what
conduct is prohibited. The essential fault with a vague law is
that it gives police open-ended and
standardless authority; this encourages arbitrary and

discriminatory law enforcement. The
California statute gave police virtually complete discretion to
determine whether a suspect of-
fered “credible and reliable” identification. It violated the due
process of law as applied. Justice
O’Connor’s majority opinion stated the values that underpin
these rules: “Our Constitution is de-
signed to maximize individual freedoms within a framework of
ordered liberty.”
Justice Brennan, concurring, argued that the statute was facially
unconstitutional
under the Fourth Amendment—that is, it was unconstitutional
however applied. Justices
White and Rehnquist dissented on the ground that people given
actual notice of the applica-
tion of the statute cannot challenge it on vagueness grounds
because they are apprised of the
law’s impact.
A distinguishing hallmark of American life is the lack of a
general requirement that citi-
zens carry official identification at all times. Many democratic
nations require their citizens to
carry internal passports. But even if reasonable, internal
passports are opposed because of the
powerful cultural norms of individuality and freedom that mark
the American character, norms
that help to explain the Kolender v. Lawson ruling. However,
after 9/11 some have called for a
national identification card or a system that links driver’s
licenses to a national registry.25
The Court reconsidered a loitering statute in City of Chicago v.
Morales (1999). A Chicago
“gang congregation” ordinance prohibited loitering together in

any public place by two or more
people if at least one individual was a “criminal street gang
member.” It defined loitering as re-
maining in any one place with no apparent purpose. A police
officer observing what was reason-
ably believed to be loitering was required to order the group to
disperse on threat of criminal
penalties. The Chicago Police Department promulgated
guidelines to prevent arbitrary or dis-
criminatory enforcement of the ordinance. These allowed only
designated gang squad officers to
use the ordinance, established detailed criteria for determining
street gangs and membership, and
limited enforcement to areas with high gang activity (not
disclosed to the public). The Court
struck down the ordinance on the grounds of due process
vagueness.
The ordinance had been vigorously enforced: Forty-two
thousand people were arrested for
loitering in three years. Justice Stevens, a Chicago native, wrote
for the majority. There was no
dispute that gang violence imperils safety and disrupts normal
street life, he wrote. As
Papachristou v. City of Jacksonville (1972) made clear,
however, a person has a right to “loi-
ter”—that is, “to remove from one place to another according to
inclination.” Such “loitering” is
“an attribute of personal liberty” protected by the Constitution.
The Court held that the ordinance
specifically violated the Due Process Clause by not clearly
defining terms like disperse and leav-
ing the locality. What exactly would purported gang members
have to do to “disperse”? How
quickly did they have to move? How far would they have to go?
Also, the ordinance did not

adequately define “loitering” with the specificity seen in
loitering ordinances that targeted drug
dealing or prostitution. It therefore “necessarily entrusts
lawmaking to the moment-to-moment
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judgment of the policeman on his beat.” Finally, the ordinance
could apply to essentially peace-

ful activity and not to underlying activities that are dangerous.
In sum, the ordinance violated the
Due Process Clause.
STOP AND IDENTIFY STATUTES In Hiibel v. Sixth Judicial
District Court (2004), the
Supreme Court answered a question left open in Brown v. Texas
(1979) and upheld a law requir-
ing a person who was lawfully stopped by police to give his or
her name. “Stop and identify
statutes often combine elements of traditional vagrancy laws
with provisions intended to regu-
late police behavior in the course of investigatory stops. The
statutes vary from State to State, but
all permit an officer to ask or require a suspect to disclose his
identity. . . . In some States, a sus-
pect’s refusal to identify himself is a misdemeanor offense or
civil violation; in others, it is a fac-
tor to be considered in whether the suspect has violated
loitering laws. In other States, a suspect
may decline to identify himself without penalty” (Hiibel, 2004).
In the Hiibel case, a Nevada sheriff’s department received a call
about a man assaulting a
woman in a red and silver GMC truck on Grass Valley Road.
The deputy sheriff who was dis-
patched to investigate found the truck parked on the side of the
road, Hiibel standing outside the
truck, and a young woman sitting inside it. Skid marks in the
gravel behind the vehicle indicated
that the truck had come to a sudden stop. Hiibel was arrested
after being asked for his name
eleven times and refusing to give it. He was convicted and fined
for obstructing a public officer in
discharging his duty. Under Nevada’s stop and identify statute,
the officer had a right to ask only

for the name of a stopped person and no right to ask for a
driver’s license or any other document.
The issue in this case was not whether an officer could properly
ask a suspect to identify
himself in the course of a Terry stop. This practice was
recognized in many cases. The issue was
whether a lawfully detained suspect could be arrested and
prosecuted for failing to give his or her
name. The source of Hiibel’s obligation to answer the officer
was a state law, not the Fourth
Amendment. The Supreme Court found that the statutory
obligation is consistent with Terry’s
principles of reasonably balancing police officers’ needs with
suspects’ expectation of privacy.
This conclusion was linked to the majority’s positive view of
identification:
Obtaining a suspect’s name in the course of a Terry stop serves
important govern-
ment interests. Knowledge of identity may inform an officer
that a suspect is wanted
for another offense, or has a record of violence or mental
disorder. On the other
hand, knowing identity may help clear a suspect and allow the
police to concentrate
their efforts elsewhere. Identity may prove particularly
important in cases such as
this, where the police are investigating what appears to be a
domestic assault.
Officers called to investigate domestic disputes need to know
whom they are dealing
with, in order to assess the situation, the threat to their own
safety, and possible dan-
ger to the potential victim. (Hiibel v. Sixth Judicial District
Court, 2004)

Four justices dissented. Justice Stevens believed that the Fifth
Amendment privilege
against self-incrimination was violated because a person forced
to give his or her name provides
a testimonial communication. The person’s name can be used to
incriminate him or her:
A person’s identity obviously bears informational and
incriminating worth, even if
the [name] itself is not inculpatory. A name can provide the key
to a broad array of
information about the person, particularly in the hands of a
police officer with access
to a range of law enforcement databases. And that information,
in turn, can be
tremendously useful in a criminal prosecution. It is therefore
quite wrong to suggest
that a person’s identity provides a link in the chain to
incriminating evidence only in
unusual circumstances. (Hiibel v. Sixth Judicial District Court,
2004, Stevens, J.,
dissenting, internal quote marks and citations omitted)
Justices Breyer, Souter, and Ginsburg based their dissent on the
Fourth Amendment, arguing that
the rule against requiring identification during a stop was well
established.
FLEEING FROM THE POLICE Among the most hotly contested
post-Terry cases have been those
concerning scenarios in which a police officer follows or chases
a person. Michigan v. Chesternut
(1988) held that police “intrusion” did not amount to an illegal
detention and search. Chesternut,
standing on a Detroit street corner, began to run when he saw a

police car drive near. The patrol car
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208 Chapter 4
turned the corner and followed to see where he was going. The
car quickly caught up with him and
drove alongside for a short distance. The officers saw
Chesternut discard packets from his right-
hand pocket; when they retrieved the packets, they found pills

that one officer, who was trained as
a paramedic, identified as codeine. Chesternut was arrested and
searched, and more drugs were
found on his person. The Michigan courts held that the police
were engaged in an “investigatory
pursuit” that amounted to a seizure under Terry.
A unanimous Supreme Court reversed, holding that the police
conduct of driving along-
side the defendant did not constitute a stop or a Fourth
Amendment seizure. The police used no
flashers or siren, drew no weapons, and did not order the
defendant to stop. The car was not
operated in an aggressive way to block Chesternut’s course or
otherwise control his speed or
movement. “While the very presence of a police car driving
parallel to a running pedestrian
could be somewhat intimidating, this kind of police presence
does not, standing alone, constitute
a seizure. . . . The police therefore were not required to have ‘a
particularized and objective basis
for suspecting [Chesternut] of criminal activity,’ in order to
pursue him” (Michigan v.
Chesternut, 1988). Chesternut is an example of the rule that
police need no evidentiary basis for
observing on-the-street behavior, even if the observation
becomes obvious.
In California v. Hodari D., the police did not simply follow, but
clearly chased, a person
on foot.
Read Case and Comments: California v. Hodari D.
One commentator sees Hodari D. as the “culmination of a
struggle between two factions of

the Supreme Court,” and a victory by the group led by
conservative Justices Kennedy and Scalia.
If the Mendenhall Court meant what it said when it proposed
that a seizure is to be measured by
the reasonable understanding of the individual, then the
majority in Hodari D. created a new rule
when it added a “physical restraint” element to Fourth
Amendment seizures.26 A year before
Hodari D., a leading scholar accepted as an established rule that
“[w]hen a cop accosts a citizen
on the street, the constitutional standard for measuring whether
a seizure occurs is whether—in
light of the totality of the circumstances—a reasonable person
would feel free to leave the
scene.”27 Professor Tracey Maclin saw this as a matter of
commonsense reality: “In the typical
street encounter, few persons, if any, feel free to ignore or leave
the presence of a police officer
who has approached and questioned them. . . . [T]he average
individual who is approached by a
police officer does not feel free to leave.”28 The implication of
a pure Mendenhall rule plus “what
everyone knows about being approached by the police” was that
a police officer who “rushes” an
individual without reasonable suspicion has seized that person;
and if the person flees and tosses
away contraband, its seizure is the product of an illegal search
and seizure. The Hodari D. mod-
ification allows the tossed contraband to be taken and used as
“abandoned” property.
The unresolved issue in Hodari D.—whether mere flight from
the sight of a police officer es-
tablished reasonable suspicion for an officer to give chase—was
settled in favor of the police in
Illinois v. Wardlow (2000). A four-car police caravan was

cruising through a high-crime neighbor-
hood, looking for on-the-street drug deals. Sam Wardlow was
standing alone and holding an opaque
bag; he made eye contact with an officer in the last car and
“fled.” Two officers in the car watched
Wardlow run through a passageway and an alley and eventually
cornered him on the street. One
officer exited his car, stopped Wardlow, “and immediately
conducted a protective pat-down search
for weapons because in his experience it was common for there
to be weapons in the near vicinity
of narcotics transactions. During the frisk, Officer Nolan
squeezed the bag respondent was carrying
and felt a heavy, hard object similar to the shape of a gun. The
officer then opened the bag and dis-
covered a .38-caliber handgun with five live rounds of
ammunition. The officers arrested Wardlow.”
The Court emphasized the rule of Brown v. Texas (1979)—the
simple presence of a person in a
high-crime area does not give officers reasonable suspicion to
stop a person. On the other hand, the
Court ruled that unprovoked flight from the police, coupled
with “commonsense judgment . . . and
inferences about human behavior,” constitutes reasonable
suspicion. The Court did not say that flight
is a per se factor that always established reasonable suspicion.
While simple unprovoked flight tends
to be a basis of reasonable suspicion, under this view, the
officer may also take into account other fac-
tors, such as the belief that a neighborhood is a high-crime area.
Four justices in Wardlow—Stevens,
Souter, Ginsburg, and Breyer—concurred in part and dissented
in part. The concurring opinion kept
alive the idea that under some conditions flight will not be
viewed as reasonable suspicion for a stop.

The ruling creates some tension with another rule of Terry: that
a person against whom the
police do not have reasonable suspicion may refuse to talk to
the officer and, citing Bostick, that
“any ‘refusal to cooperate, without more, does not furnish the
minimal level of objective justification
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needed for a detention or seizure.’” If a police officer, with no
reasonable suspicion, approaches a
person on the street to ask if the person will consent to talk to
the officer and the person “flees,” this
could invoke reasonable suspicion. Much would depend on the
facts of such a scenario. Wardlow
does not fully define what is meant by flight. Thus, under the
facts of Wardlow, it is unclear whether
flight occurs if a person, after looking at an officer, gets on a
bicycle and rides away, hails a taxi and
drives off, or enters the building he was standing in front of.29
Such issues will be resolved in future
cases. Wardlow clearly expands the actual authority of police to
control the streets.
Terry on the Road
Many Terry cases have developed auxiliary rules for
interpreting the stop and frisk authority in
automobile stop situations. The scope of a warrantless
automobile search based on probable
cause is dealt with in Chapter 5.
SCOPE OF A TERRY STOP AND FRISK Most Terry cases
involve a frisk of a person. Michigan v.
Long (1983) held that when police stop a driver without
arresting him or her, they may make a
quick and cursory examination of the car’s interior—a frisk of
the car, so to speak. In Long, sher-
iff’s deputies stopped a speeding and erratically driven car. The
driver pulled into a ditch and
exited the car. The door was left open. The driver, David Long,
did not produce identification
when asked to do so. Long began to walk back to the car but
was stopped and frisked. No

weapons were found. The deputies saw a hunting knife on the
floorboard of the driver’s side of
the car. One deputy peered into the car with a flashlight and saw
something protruding from
under the armrest on the front seat. He knelt in the vehicle and
lifted the armrest, saw an open
pouch on the front seat, and, upon flashing his light on the
pouch, determined that it contained
what appeared to be marijuana. Long was arrested, and a search
of the car’s trunk revealed
seventy-five pounds of marijuana.
The Court held the search constitutional under the principles of
Terry. One reason is that
“investigative detentions involving suspects in vehicles are
especially fraught with danger to
police officers.” Thus, to protect their safety, police officers
who stop cars may engage in a cur-
sory examination of the passenger areas of the vehicle to look
for weapons in those areas in
which a weapon may be placed or hidden when they have a
reasonable belief based on articula-
ble facts that the suspect poses a danger and may gain
immediate control of the weapons.
INFERENTIAL REASONING AND REASONABLE
SUSPICION Terry defines reasonable suspi-
cion, which justifies a stop, as “specific and articulable facts
which, taken together with rational
inferences from those facts, reasonably warrant that intrusion”
(Terry v. Ohio, 1968; emphasis
added). This important part of the Terry doctrine was clarified
and extended in United States v.
Cortez (1981). U.S. Border Patrol officers, alerted by
distinctive footprints and tire tracks in a
sparsely settled area of desert thirty miles north of the Mexican

border, deduced that a truck
capable of holding eight to twenty people would approach from
the east and stop between 2 a.m.
and 6 a.m. near milepost 122 on Highway 86. As the officers
surveyed the road on a particularly
bright moonlit night, a camper passed traveling west and then
returned approaching from the east
at about the time it would take to return from milepost 122.
Agents stopped the camper, and ille-
gal aliens were found inside. The Court unanimously held that
this stop was based on reasonable
suspicion. Chief Justice Burger established a structure for
reasonable suspicion analysis:
Courts have used a variety of terms to capture the elusive
concept of what cause is suffi-
cient to authorize police to stop a person. Terms like
“articulable reasons” and “founded
suspicion” are not self-defining; they fall short of providing
clear guidance dispositive of
the myriad factual situations that arise. But the essence of all
that has been written is that
the totality of the circumstances—the whole picture—must be
taken into account. . . .
The idea that an assessment of the whole picture must yield a
particularized
suspicion contains two elements, each of which must be present
before a stop is
permissible. First, the assessment must be based upon all the
circumstances. The
analysis proceeds with various objective observations,
information from police re-
ports, if such are available, and consideration of the modes or
patterns of operation
of certain kinds of lawbreakers. From these data, a trained

officer draws inferences
and makes deductions—inferences and deductions that might
well elude an un-
trained person.
The process does not deal with hard certainties, but with
probabilities. . . .
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CASE AND COMMENTS
California v. Hodari D.
499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)
JUSTICE SCALIA delivered the opinion of the Court.
Late one evening in April 1988, Officers Brian McColgin and
Jerry Pertoso were on patrol in a
high-crime area of Oakland, California. They were dressed in
street clothes but wearing jackets with
“Police” embossed on both front and back. Their unmarked car
proceeded west on Foothill Boulevard,
and turned south onto 63rd Avenue. [a] As they rounded the
corner, they saw four or five youths huddled
around a small red car parked at the curb. When the youths,
[including Hodari D.], saw the officers’ car
approaching they apparently panicked, and took flight. * * *
The officers were suspicious and gave chase. [b] McColgin
remained in the car * * *; Pertoso left
the car [and chased on foot]. Hodari [emerged from an alley and
did not see] Pertoso until the officer
was almost upon him, whereupon he tossed away what appeared
to be a small rock. A moment later,
Pertoso tackled Hodari, handcuffed him, and radioed for
assistance. Hodari was found to be carrying
$130 in cash and a pager; and the rock he had discarded was
found to be crack cocaine.
In the juvenile proceeding brought against him, Hodari moved
to suppress the evidence relating
to the cocaine. The court denied the motion without opinion.
The California Court of Appeal reversed,

holding that Hodari had been “seized” when he saw Officer
Pertoso running towards him, that this
seizure was unreasonable under the Fourth Amendment, and that
the evidence of cocaine had to be sup-
pressed as the fruit of that illegal seizure. The California
Supreme Court denied the State’s application
for review. We granted certiorari. * * *
As this case comes to us, the only issue presented is whether, at
the time he dropped the drugs,
Hodari had been “seized” within the meaning of the Fourth
Amendment. [c] If so, respondent argues,
the drugs were the fruit of that seizure and the evidence
concerning them was properly excluded. If not,
the drugs were abandoned by Hodari and lawfully recovered by
the police, and the evidence should have
been admitted. (In addition, of course, Pertoso’s seeing the rock
of cocaine, at least if he recognized it as
such, would provide reasonable suspicion for the unquestioned
seizure that occurred when he tackled
Hodari. * * *).
We have long understood that the Fourth Amendment’s
protection against “unreasonable . . .
seizures” includes seizure of the person. * * * From the time of
the founding to the present, the word
“seizure” has meant a “taking possession.” * * * For most
purposes at common law, the word connoted not
merely grasping, or applying physical force to, the animate or
inanimate object in question, but actually
bringing it within physical control. [d] A ship still fleeing, even
though under attack, would not be consid-
ered to have been seized as a war prize. * * * To constitute an
arrest, however—the quintessential seizure
of the person under our Fourth Amendment jurisprudence—the
mere grasping or application of physical

force with lawful authority, whether or not it succeeded in
subduing the arrestee, was sufficient. * * *
To say that an arrest is effected by the slightest application of
physical force, despite the arrestee’s
escape, is not to say that for Fourth Amendment purposes there
is a continuing arrest during the period
of fugitivity. If, for example, Pertoso had laid his hands upon
Hodari to arrest him, but Hodari had
broken away and had then cast away the cocaine, it would
hardly be realistic to say that that disclosure
had been made during the course of an arrest. * * * The present
case, however, is even one step further
removed. It does not involve the application of any physical
force; Hodari was untouched by Officer
Pertoso at the time he discarded the cocaine. His defense relies
instead upon the proposition that a
seizure occurs “when the officer, by means of physical force or
show of authority, has in some way
restrained the liberty of a citizen.” Terry v. Ohio (emphasis
added). Hodari contends (and we accept as
true for purposes of this decision) that Pertoso’s pursuit
qualified as a “show of authority” calling upon
Hodari to halt. The narrow question before us is whether, with
respect to a show of authority as with
respect to application of physical force, a seizure occurs even
though the subject does not yield. We hold
that it does not.
The language of the Fourth Amendment, of course, cannot
sustain respondent’s contention. The
word “seizure” readily bears the meaning of a laying on of
hands or application of physical force to
restrain movement, even when it is ultimately unsuccessful.
(“She seized the purse-snatcher, but he
broke out of her grasp.”) It does not remotely apply, however,

to the prospect of a policeman yelling
“Stop, in the name of the law!” at a fleeing form that continues
to flee. That is no seizure. [e] Nor can the
result respondent wishes to achieve be produced—indirectly, as
it were—by suggesting that Pertoso’s
uncomplied-with show of authority was a common-law arrest,
and then appealing to the principle that
all common-law arrests are seizures. An arrest requires either
physical force (as described above) or,
where that is absent, submission to the assertion of authority. *
* *
[e] As Watson demonstrated, a strict
reading of the language of the
Constitution does not always bind
the Court. Is it reasonable to view a
chase as a seizure if the police officer
is close to the person running and is
likely to capture him?
[d] Is the chase of a sailing ship on
the high seas a good analogy for a
police officer chasing a youth
through a city neighborhood?
[c] California conceded that the
flight of the youths upon seeing the
police was not in itself reasonable
suspicion for a Terry stop. Although
Justice Scalia thought the point was
arguable, he was bound by this
concession. The issue was left open
for a later case.
[b] Do you think that a teen who
runs from the sight of a cop should

be chased? If caught, should he be
arrested or subjected to field
interrogation?
[a] Does a group of huddled
teenagers provide grounds to arrest
them? To forcibly stop them under
Terry?
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We do not think it desirable, even as a policy matter, to stretch
the Fourth Amendment beyond its
words and beyond the meaning of arrest, as respondent urges.
Street pursuits always place the public at
some risk, and compliance with police orders to stop should
therefore be encouraged. * * *
Respondent contends that his position is sustained by the so-
called Mendenhall test, . . . “A per-
son has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circum-
stances surrounding the incident, a reasonable person would
have believed that he was not free to
leave.” * * * [f] In seeking to rely upon that test here,
respondent fails to read it carefully. It says that a
person has been seized “only if,” not that he has been seized
“whenever”; it states a necessary, but not a
sufficient condition for seizure—or, more precisely, for seizure
effected through a “show of authority.”
Mendenhall establishes that the test for existence of a “show of
authority” is an objective one: not
whether the citizen perceived that he was being ordered to
restrict his movement, but whether the offi-
cer’s words and actions would have conveyed that to a
reasonable person. * * *
[This case is like the chase in Brower v. Inyo County (1989):
there was no arrest until Brower
crashed into the roadblock.]
In sum, assuming that Pertoso’s pursuit in the present case
constituted a “show of authority” en-
joining Hodari to halt, since Hodari did not comply with that
injunction he was not seized until he was

tackled. The cocaine abandoned while he was running was in
this case not the fruit of a seizure, and his
motion to exclude evidence of it was properly denied. We
reverse the decision of the California Court of
Appeal, and remand for further proceedings not inconsistent
with this opinion.
JUSTICE STEVENS, with whom JUSTICE MARSHALL joins,
dissenting.
The Court’s narrow construction of the word “seizure”
represents a significant, and in my view, un-
fortunate, departure from prior case law construing the Fourth
Amendment. * * * [T]he Court now adopts
a definition of “seizure” that is unfaithful to a long line of
Fourth Amendment cases. Even if the Court were
defining seizure for the first time, which it is not, the definition
that it chooses today is profoundly unwise.
[g] In its decision, the Court assumes, without acknowledging,
that a police officer may now fire his
weapon at an innocent citizen and not implicate the Fourth
Amendment—as long as he misses his target.
For the purposes of decision, the following propositions are not
in dispute. First, when Officer
Pertoso began his pursuit of respondent, the officer did not have
a lawful basis for either stopping or
arresting respondent. * * * Second, the officer’s chase
amounted to a “show of force” as soon as respon-
dent saw the officer nearly upon him. * * * Third, the act of
discarding the rock of cocaine was the
direct consequence of the show of force. * * * Fourth, as the
Court correctly demonstrates, no common-
law arrest occurred until the officer tackled respondent. * * *
Thus, the Court is quite right in conclud-
ing that the abandonment of the rock was not the fruit of a

common-law arrest.
It is equally clear, however, that if the officer had succeeded in
touching respondent before he
dropped the rock—even if he did not subdue him—an arrest
would have occurred. [h] * * * In that event
(assuming the touching precipitated the abandonment), the
evidence would have been the fruit of an un-
lawful common-law arrest. The distinction between the actual
case and the hypothetical case is the same
as the distinction between the common-law torts of assault and
battery—a touching converts the former
into the latter. Although the distinction between assault and
battery was important for pleading purpos-
es, * * * the distinction should not take on constitutional
dimensions. The Court mistakenly allows this
common-law distinction to define its interpretation of the
Fourth Amendment.
At the same time, the Court fails to recognize the existence of
another, more telling, common-law
distinction—the distinction between an arrest and an attempted
arrest. As the Court teaches us, the distinc-
tion between battery and assault was critical to a correct
understanding of the common law of arrest. * * *
(“An arrest requires either physical force . . . or, where that is
absent, submission to the assertion of authori-
ty”). However, the facts of this case do not describe an actual
arrest, but rather, an unlawful attempt to take
a presumptively innocent person into custody. Such an attempt
was unlawful at common law. [i] Thus, if the
Court wants to define the scope of the Fourth Amendment based
on the common law, it should look, not to
the common law of arrest, but to the common law of attempted
arrest, according to the facts of this case.

* * *
[The dissent goes on to criticize the majority for taking a
narrow view of seizure that goes against
the policy purposes of Katz that broadened the range of
behaviors that came within the scope of Fourth
Amendment seizures, such as the stop and frisk in Terry v.
Ohio. Terry said that a Fourth Amendment
seizure occurs when an officer, by means of physical force or
show of authority, has in some way
restrained a citizen’s liberty. Such an interference with liberty
occurred in this case, and so the majori-
ty’s common law reasoning fails to comport with the
constitutional dimensions of Fourth Amendment
law after Terry.]
Even though momentary, a seizure occurs whenever an objective
evaluation of a police officer’s
show of force conveys the message that the citizen is not
entirely free to leave—in other words, that his
or her liberty is being restrained in a significant way. * * *
[i] This challenges the accuracy and
completeness of Justice Scalia’s
common law analysis—an especially
sharp attack because Justice Scalia,
as an originalist, relies heavily on the
common law.
[h] A touching would manifest the
officer’s intent to arrest and would
make the person liable for resisting
arrest. Should constitutional rights
turn on whether the officer “tagged”
the fleeing youth?

[g] If a police officer, without
probable cause or reasonable
suspicion, fired a gun at you and
missed, should you be able to claim a
violation of your Fourth Amendment
rights in a civil suit against the
officer? If so, this example
undermines Justice Scalia’s
argument.
[f] Would it not seem to a reasonable
person, from the officer’s actions,
that Hodari D. believed he was not
free to leave? Does this conclusion
help Hodari D.’s argument?
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212 Chapter 4
The second element contained in the idea that an assessment of
the whole pic-
ture must yield a particularized suspicion is the concept that the
process just de-
scribed must raise a suspicion that the particular individual
being stopped is engaged
in wrongdoing. (United States v. Cortez, 1981)
Cortez continues to support the concept of police officer
expertise, which was a basis of finding
reasonable suspicion in the Terry case.
Inferences were key to the decision in United States v. Arvizu
(2002). Arvizu was driving
a minivan with his wife and children on an unpaved road in a
remote area in the Coronado
National Forest of southeastern Arizona known for drug
trafficking. Border patrol checkpoints
are staffed intermittently, and roving patrols are used to
apprehend smugglers trying to circumvent
the checkpoints. Magnetic sensors facilitate agents’ efforts in
patrolling these areas. A sensor was
triggered around 2:15 p.m. This timing coincided with the point
when agents begin heading back
to the checkpoint for a shift change, leaving the area
unpatrolled. Alien smugglers do extensive
scouting and seem to be most active when agents are returning

to the checkpoint. An agent told
Agent Stoddard that the same sensor had gone off several weeks
before, leading to the apprehen-
sion of a drug-carrying minivan using the same route.
Stoddard proceeded to the area and observed the minivan
passing. As it approached, it
slowed dramatically, from about 50 miles per hour to 25 or 30
miles per hour. He saw five occu-
pants inside: two adults in the front seat and three children in
the back. The driver appeared stiff and
his posture very rigid. He did not look at Stoddard and seemed
to be trying to pretend that Stoddard
was not there. Stoddard thought this suspicious because in his
experience on patrol most people
look over and see what is going on, and in that area most
drivers give border patrol agents a friend-
ly wave. Stoddard noticed that the knees of the two children
sitting in the very back seat were un-
usually high, as if their feet were propped up on some cargo on
the floor. As Stoddard followed the
minivan, all of the children, still facing forward, put their hands
up at the same time and began to
wave at Stoddard in an abnormal way. It looked to Stoddard as
if the children were being instruct-
ed. Their odd waving continued on and off for about four to five
minutes. A registration check dis-
closed that the minivan was registered to an address in Douglas,
Arizona, four blocks north of the
border in an area notorious for alien and narcotics smuggling.
Stoddard stopped the van, asked if he
could search, and Arvizu agreed. A duffel bag containing
128.85 pounds of marijuana was found.
The U.S. Court of Appeals struck down the stop, by isolating
the factors and noting that

each was innocent. For example, that court noted that slowing
down after seeing an officer is
common. It dismissed entirely the children’s waving, saying, “If
every odd act engaged in by
one’s children . . . could contribute to a finding of reasonable
suspicion, the vast majority of
American parents might be stopped regularly within a block of
their homes.”
The Supreme Court reversed the decision and unanimously
upheld the stop. It emphasized
that the totality of the circumstances must be considered. “This
process allows officers to draw
on their own experience and specialized training to make
inferences from and deductions about
the cumulative information available to them that ‘might well
elude an untrained person.’” The
Court noted that it has deliberately avoided reducing reasonable
suspicion to “a neat set of legal
rules.” Giving due weight to the factual inferences drawn by
Stoddard and the district court
judge, the Court ruled that the agent had reasonable suspicion to
believe that Arvizu was engaged
in illegal activity.
BREVITY REQUIREMENT Another automobile stop and frisk
case clarified an important Terry
rule: A legal detention must be reasonably brief. In United
States v. Sharpe (1985), a Drug
Enforcement Agency (DEA) agent patrolling a road under
surveillance for suspected drug traffick-
ing noticed an overloaded pickup truck with an attached trailer
being followed closely by a Pontiac.
After following the two vehicles for twenty miles, the officer
decided to make an investigatory stop
and radioed the South Carolina Highway Patrol for assistance.

When the DEA agent and the state
police officer indicated that the two vehicles were to pull over,
the Pontiac did so, but the truck con-
tinued along the road in an attempt to evade the state police.
The driver of the Pontiac was detained
for twenty minutes while the DEA agent followed the truck,
approached it after it was stopped,
smelled marijuana in it, and returned to the detained Pontiac.
While the Court found that the officer
had reasonable suspicion to make the initial stop, at issue was
whether a twenty-minute detention
was too long under the Terry doctrine because it violated the
brevity requirement for stops. The
Supreme Court held that whether a stop is too long (and thus
becomes an arrest) depends not only
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on the length of time of the stop but also on the surrounding
circumstances. The question is whether
the length of time employed was reasonable. In Sharpe, the
delay occurred because of the evasive
action of the driver of the truck. The Court found that because
the police acted diligently to ascer-
tain the facts without creating unnecessary delays, Terry was
not violated. Note that a twenty-
minute stop was sufficiently long so that a special reason had to
be supplied to justify it. Terry stops
are supposed to be just long enough for an officer to ask
questions to determine, based on objective
factors, whether there is probable cause to arrest or no basis for
further detention.
AUTHORITY TO STOP AN AUTOMOBILE In Delaware v.
Prouse (1979), a patrol officer made
a “routine” stop of a car, explaining, “I saw the car in the area
and wasn’t answering any com-
plaints, so I decided to pull them off.” Prior to the vehicle stop,
he did not observe any traffic or
equipment violations or any suspicious activity. He made the
stop merely to check the driver’s
license and registration. The officer did not act pursuant to any
standards, guidelines, or proce-
dures pertaining to document spot checks as defined by his
department or the state attorney

general. During the stop, the officer smelled marijuana and
made an arrest and seizure.
Lower courts had split on whether this kind of vehicle stop,
without reasonable suspicion or
probable cause, violated the Fourth Amendment. The Supreme
Court, holding this kind of stop and
seizure unconstitutional, was not writing on a blank slate. Four
years earlier, it had decided in
United States v. Brignoni-Ponce (1975) that Border Patrol
agents conducting roving patrols near
the international border violated the Fourth Amendment by
stopping vehicles at random. Although
intercepting illegal aliens was important, the Court felt that it
was unconstitutional to stop cars—
not at the border or at fixed checkpoints—but on roads within
one hundred miles of the Mexican
border, without establishing reasonable suspicion. The reasons
are that such stops (1) interfere with
freedom of movement, (2) are inconvenient and time
consuming, and (3) may create substantial
anxiety for a driver who is pulled over for no apparent reason.
In contrast, a motorist does not feel
the same anxiety at a roadblock or fixed checkpoint where other
motorists are observed going
through the same drill. The Court dismissed the arguments that
an automobile stop is an adminis-
trative search or that people have a lesser expectation of privacy
in a car than in a home:
An individual operating or traveling in an automobile does not
lose all reasonable
expectation of privacy simply because the automobile and its
use are subject to gov-
ernment regulation. Automobile travel is a basic, pervasive, and
often necessary

mode of transportation to and from one’s home, workplace, and
leisure activities.
Many people spend more hours each day traveling in cars than
walking on the
streets. Undoubtedly, many find a greater sense of security and
privacy in traveling
in an automobile than they do in exposing themselves by
pedestrian or other modes
of travel. Were the individual subject to unfettered
governmental intrusion every
time he entered an automobile, the security guaranteed by the
Fourth Amendment
would be seriously circumscribed. (Delaware v. Prouse, 1979)
The stop in Prouse was unconstitutional, and the evidence had
to be suppressed.
An important related issue is whether a police officer can stop a
car based on reasonable
suspicion of a traffic offense when the true motive of the officer
is to search for drugs—the
pretext search issue. This question is highly contentious because
police departments, especially
those astride busy highways, “earn” billions of dollars in drug
asset forfeitures of cars and cash
and so have an incentive to stringently enforce traffic laws. The
question has become politically
explosive because it has been shown that this practice has been
accompanied with “racial profil-
ing” that disproportionately targets minorities. (See the “Law in
Society” section in Chapter 5.)
A unanimous Supreme Court resolved the pretext search issue in
favor of the police in
Whren v. United States (1996) by making it clear that an
automobile stop and arrest are valid

whenever the police have objective evidence of probable cause
of a traffic violation. On a June
evening,
plainclothes vice-squad officers of the District of Columbia
Metropolitan Police
Department were patrolling a “high drug area” of the city in an
unmarked car. Their
suspicions were aroused when they passed a dark Pathfinder
truck with temporary
license plates and youthful occupants waiting at a stop sign, the
driver looking down
into the lap of the passenger at his right. The truck remained
stopped at the intersec-
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tion for what seemed an unusually long time—more than 20
seconds. When the
police car executed a U-turn in order to head back toward the
truck, the Pathfinder
turned suddenly to its right, without signaling, and sped off at
an “unreasonable”
speed. The policemen followed, and in a short while overtook
the Pathfinder when it
stopped behind other traffic at a red light. They pulled up
alongside, and Officer
Ephraim Soto stepped out and approached the driver’s door,
identifying himself as a
police officer and directing the driver, petitioner Brown, to put
the vehicle in park.
When Soto drew up to the driver’s window, he immediately
observed two large plas-
tic bags of what appeared to be crack cocaine in petitioner
Whren’s hands.
Petitioners were arrested, and quantities of several types of
illegal drugs were
retrieved from the vehicle. (Whren v. United States, 1996)
Whren argued that the stop was not “really” for the traffic
infractions—that the traffic stop was a
pretext for searching for drugs. The Supreme Court, however,
ruled that the Fourth Amendment
review standard is objective, rather than subjective, placing
examination of the officer’s motives

off limits. Whren then argued that D.C. police regulations
“permit plainclothes officers in un-
marked vehicles to enforce traffic laws ‘only in the case of a
violation that is so grave as to pose
an immediate threat to the safety of others.’” In light of these
regulations, he suggested that for
an auto stop for a traffic violation to be valid, in addition to
having probable cause of the traffic
infraction, the stop must be one that would typically be made
for a traffic infraction.
The Court refused to establish such a rule. The motives of
officers are irrelevant in inven-
tory searches, administrative searches, maritime searches, and
searches incident to arrest as long
as there is an objective legal standard—probable cause—to
support the intrusion. The only cases
in which the Court has balanced the interests of a defendant
against the state to find that proba-
ble cause is not a sufficient standard are cases involving
searches or seizures conducted in an extraordinary manner,
unusually harmful to an
individual’s privacy or even physical interests—such as, for
example, seizure by
means of deadly force, [Tennessee v. Garner (1985)],
unannounced entry into a
home, [Wilson v. Arkansas (1995)], entry into a home without a
warrant, [Welsh v.
Wisconsin (1984)], or physical penetration of the body,
[Winston v. Lee (1985)]. The
making of a traffic stop out-of-uniform does not remotely
qualify as such an extreme
practice, and so is governed by the usual rule that probable
cause to believe the law
has been broken “outbalances” private interest in avoiding

police contact. (Whren v.
United States, 1996)
Field interrogation following an automobile search was an issue
in Ornelas v. United
States (1996). On an early December morning in Milwaukee, an
experienced detective spotted a
1981 two-door Oldsmobile with California license plates in a
motel parking lot. The car was reg-
istered to Ornelas, who with no reservations had checked into
the motel with another man at
4 a.m. “The car attracted [the detective’s] attention for two
reasons: because older model, two-
door General Motors cars are a favorite with drug couriers
because it is easy to hide things in
them; and because California is a ‘source State’ for drugs.” To
confirm this “profile” informa-
tion, a check of the DEA’s “Narcotics and Dangerous Drugs
Information System (NADDIS), a
federal database of known and suspected drug trafficker,”
revealed that both names of the motel
guests appeared as known or suspected drug dealers.
The two men were subjected to a Terry stop when entering the
car later that morning. The
officers, who had searched two thousand cars for drugs over a
period of nine years, looked into
the car. One “noticed that a panel above the right rear passenger
armrest felt somewhat loose and
suspected that the panel might have been removed and
contraband hidden inside. . . . [He] dis-
mantled the panel and discovered two kilograms of cocaine.”
Was there reasonable suspicion to
stop the men and probable cause to remove the panel? The
district court ultimately answered
each question in the affirmative.

The trial judge found that reasonable suspicion existed because
“the model, age, and
source-State origin of the car, and the fact that two men
traveling together checked into a motel
at 4 o’clock in the morning without reservations, formed a drug-
courier profile. This profile, to-
gether with the NADDIS reports, gave rise to reasonable
suspicion of drug-trafficking activity. . . .
[R]easonable suspicion became probable cause when [the
officer] found the loose panel.”
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Although the Supreme Court remanded the case to the Court of
Appeals to review the District
Court’s decision, Chief Justice Rehnquist, a Milwaukee native
who had moved to the warmer cli-
mate of Arizona, recited specific local facts to guide that court.
“For example, what may not
amount to reasonable suspicion at a motel located alongside a
transcontinental highway at the
height of the summer tourist season may rise to that level in
December in Milwaukee.” Given
Milwaukee’s cold temperatures in December, it is “a reasonable
inference that a Californian stop-
ping in Milwaukee in December is either there to transact
business or to visit family or friends.”
Ornelas also indicates that the use of drug courier profiles is
now pervasive in American policing.
CONTROLLING PEOPLE IN THE STOPPED AUTOMOBILE
The Supreme Court has given police
almost complete control either to order the driver and
passengers to remain in the automobile
when it is stopped or to order the driver and passengers out. The
primary rationale in these case
is the safety of the officer.
In Pennsylvania v. Mimms (1977), an automobile was stopped
for an expired license plate.
On ordering the driver out, the officer noticed a bulge under the
driver’s sports jacket. A frisk
produced a loaded revolver in Mimms’s waistband. Balancing
the interests of individual privacy

against the safety of law enforcement officers, the Court
unanimously upheld the officer’s frisk
and noted that many police officers are killed during routine
traffic stops. Against this, the added
intrusion of requiring that a driver exit the car momentarily is
so minimal that it hardly rises to
the level of a “petty indignity”; at most, it is a mere
inconvenience that cannot prevail against le-
gitimate concerns for the officer’s safety.
The rule of Mimms was extended to passengers in Maryland v.
Wilson (1997). Police
stopped a speeding automobile—a rental car with no regular
license plate. The officer ordered
the driver and the passengers to exit the car. There was no legal
suspicion that the passengers
were engaged in any illegal activity. As Wilson, a passenger,
got out of the car, an amount of
crack cocaine fell to the ground. Maryland’s highest court
suppressed the evidence on the ground
that the police had no authority to order passengers out of the
car without some level of individ-
ualized suspicion. The court viewed the order to exit as a Fourth
Amendment personal seizure.
The Supreme Court, in an opinion by Chief Justice Rehnquist,
reversed. The Mimms rationale—
the officer’s safety—applied equally to passengers. Indeed, the
presence of additional people
in the car increases the danger to the police. Despite the lack of
probable cause or reasonable sus-
picion against the passenger, and the fact that a passenger has a
greater liberty interest than the
driver, as a practical matter the passenger is already stopped by
the police detaining the vehicle.
This case is analogous to Michigan v. Summers (1981), which
states that police may temporarily

detain a person whose home is being searched under a search
warrant.
Justice Stevens dissented, arguing that statistics show no
greater danger to police from passen-
gers in stopped cars; the decision intrudes on personal liberty
without solid reason. Justice Kennedy
dissented, saying, “Traffic stops, even for minor violations, can
take upwards of 30 minutes. When
an officer commands passengers innocent of any violation to
leave the vehicle and stand by the side
of the road in full view of the public, the seizure is serious, not
trivial.” This decision, plus Whren
(pretextual stops), “puts tens of millions of passengers at risk of
arbitrary control by the police.” When
the Wilson rule is combined with the decision of Wyoming v.
Houghton (1999) (see Chapter 5), which
allows the police to search the handbag of a passenger when
there is probable cause to search the au-
tomobile, and with the Atwater rule, which authorizes the
custodial seizure for any arrest, an offi-
cer’s control over a stopped automobile is complete.30
Terry in Tight Places
The nature of a stop was explored in Immigration and
Naturalization Service v. Delgado
(1984). In that case, INS officers looking for illegal immigrants
walked through a factory with
the owner’s consent. They briefly questioned workers at their
workstations and, if reasonable,
asked to see immigration papers. Agents were posted at the
factory exits. The Supreme Court
held that the illegal workers were not seized within the meaning
of the Fourth Amendment, rea-
soning that “police questioning, by itself, is unlikely to result in

a Fourth Amendment violation.”
The factory workers were not free to leave, but the “detention”
was caused not by the police but
by the workers’ normal employment requirements. The Court
held that the agents were simply
questioning people and that these encounters were consensual.
Justices Brennan and Marshall
dissented, arguing that the show of authority by the immigration
officials was sufficiently sub-
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216 Chapter 4
stantial to “overbear the will of any reasonable person.” Based
on this show of authority, rea-
soned the dissenters, the factory workers were forcibly stopped
within the meaning of Terry.
The use of drug courier profiles at airports (discussed later in
this chapter) spawned similar
practices at bus and train stations. In Florida v. Bostick (1991),
decided shortly after Hodari D.,
the Supreme Court confirmed its sharp swing toward supporting
the police in investigatory stops.
Two [Broward County sheriff’s] officers, complete with badges,
insignia and one of
them holding a recognizable zipper pouch, containing a pistol,
boarded a bus bound
from Miami to Atlanta during a stopover in Fort Lauderdale.
Eyeing the passengers,
the officers admittedly without articulable suspicion, picked out
the defendant pas-
senger and asked to inspect his ticket and identification. The
ticket, from Miami to
Atlanta, matched the defendant’s identification and both were
immediately returned
to him as unremarkable. However, the two police officers
persisted and explained
their presence as narcotics agents on the lookout for illegal
drugs. In pursuit of that
aim, they then requested the defendant’s consent to search his
luggage. (Florida v.
Bostick, 1991)
Cocaine was found in the bag. Before they began this encounter,

the officers had no reasonable
suspicion or probable cause to believe that Terrance Bostick
was carrying drugs.
The issue was whether Bostick consented to the search or
whether he was seized. Justice
O’Connor’s majority opinion held that Bostick consented: “Our
cases make it clear that a seizure
does not occur simply because a police officer approaches an
individual and asks a few ques-
tions. So long as a reasonable person would feel free to
disregard the police and go about his
business, . . . the encounter is consensual and no reasonable
suspicion is required” (Florida v.
Bostick, 1991, internal quotation marks modified). It is curious
that the Court cited Hodari D. for
this proposition rather than relying exclusively on Mendenhall.
The Court’s majority in these
cases appears to have selected a different theory in each case to
ensure the decision would favor
law enforcement: Under Hodari D., one who flees is not seized;
under Mendenhall-Bostick, one
who relents, consents. This seems to create a “heads I win, tails
you lose” rule, with the police
holding the coin.
Justice Marshall dissented, joined by Justices Blackmun and
Stevens. He harshly castigat-
ed this form of investigation: “These sweeps are conducted in
‘dragnet’ style,” noting that this
high-volume practice (sweeps of three thousand buses in a nine-
month period) inconveniences a
large number of innocent people (one case found that sweeps of
a hundred buses resulted
in seven arrests). The heart of the dissent was that the police
questioning is inherently coercive,

undermining consent:
To put it mildly, these sweeps “are inconvenient, intrusive, and
intimidating.” They
occur within cramped confines, with officers typically placing
themselves in be-
tween the passenger selected for an interview and the exit of the
bus. Because the
bus is only temporarily stationed at a point short of its
destination, the passengers are
in no position to leave as a means of evading the officers’
questioning. (Florida v.
Bostick, 1991, Marshall, J. dissenting)
The majority pointed out, to the contrary, that
[t]he present case is analytically indistinguishable from
Delgado. Like the workers
in that case, Bostick’s freedom of movement was restricted by a
factor independent
of police conduct—i.e., by his being a passenger on a bus.
Accordingly, the “free to
leave” analysis on which Bostick relies is inapplicable. In such
a situation, the
appropriate inquiry is whether a reasonable person would feel
free to decline the
officers’ requests or otherwise terminate the encounter. (Florida
v. Bostick, 1991)
Indeed, Bostick was told he had a right to refuse; the pouched
gun was never removed, nor did
the officers ever point it at Bostick or use it in a threatening
manner; and Bostick agreed to open
his bag. These factors, according to the majority, negated
coercion and supported the conclusion
that Bostick volunteered to open his bag.

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In United States v. Drayton (2002), a bus sweep case with facts
very similar to Bostick, the
Supreme Court held that the police need not inform a bus rider
that he has a right to refuse to
consent to a search of his baggage, relying on Ohio v. Robinette
(1996) and Schneckloth v.

Bustamonte (1973). Justice Souter dissented, joined by Justices
Stevens and Ginsburg. He
argued that if three officers approached a person on the street,
hemmed him in very closely, and
asked if they could search any luggage, this would be
intimidation that undermines consent. The
same is the case in the close quarters of a bus with an aisle
fifteen inches wide, cramped seats,
the police in apparent control of the bus, and officers saying
that they were “conducting a bus
interdiction” and “wanted cooperation.”
Most scholarly commentators agree with the dissent in Bostick
and refer to the decisions in
this case and Hodari D. as the “no seizure” rule. Professor
Gerald Ashdown, for example, writes,
“Hardly anyone who is confronted and questioned by armed
officers, asked for identification and
permission to search, believes he is free to do much of anything,
certainly not to refuse to answer
or to walk away. Anyone with a lick of sense knows that doing
these things will only aggravate
the situation and cause him more trouble.”31
AUTOMOBILE CHECKLANES In Delaware v. Prouse (1979),
discussed earlier in this chapter, the
Court held that a car cannot be stopped while proceeding in
traffic unless an officer has specific
suspicion to believe that it was engaged in a traffic violation or
a criminal act. Prouse distinguished
on-the-road stops from stops at roadblocks or fixed checkpoints,
contending that motorists do not
feel the same anxiety in the latter situations because they
observe other motorists going through the
same drill. The Supreme Court specifically upheld sobriety
checklanes in Michigan Department of

State Police v. Sitz (1990). These stops are not Fourth
Amendment seizures.
In deciding that sobriety checklanes are not a violation of a
person’s reasonable expecta-
tion of privacy, the Court relied on border search fixed
checkpoint cases: United States v. Ortiz
(1975) and United States v. Martinez-Fuerte (1976). Those
cases compared the subjective and
psychological level of intrusion of fixed checkpoints on the
highway as compared to stops made
by roving patrols. Since at the fixed checkpoint the motorist
sees other vehicles being briefly
detained and sees the visible indicia of the police officers’
authority, “he is much less likely to be
frightened or annoyed by the intrusion” (United States v. Ortiz,
quoted in United States v.
Martinez-Fuerte). These findings were applied to the Michigan
sobriety checklane situation:
“Here, checkpoints are selected pursuant to the guidelines, and
uniformed police officers stop
every approaching vehicle. The intrusion resulting from the
brief stop at the sobriety checkpoint
is for constitutional purposes indistinguishable from the
checkpoint stops we upheld in
Martinez-Fuerte” (Michigan Department. of State Police v.
Sitz). Chief Justice Rehnquist’s
majority opinion also pointed out that drunk driving is a serious
national problem resulting in
approximately twenty-five thousand deaths annually. The idea
of the checklane as a regulatory
device played some role in the decision.
In Sitz, the Court also considered whether the effectiveness of
checklanes in combating
drunk driving was a factor of Fourth Amendment balancing. Sitz

argued that other methods were
more effective. The Court ruled that the choice of enforcement
modalities was up to the legislature
and the executive branches—politically accountable officials—
rather than allowing the courts to
determine which law enforcement techniques to employ to deal
with a serious public danger.
Justice Stevens, dissenting, disagreed with the Court’s finding
that sobriety checklanes are
essentially the same as border checklanes. Sobriety checklanes,
for example, occur at night, are
not at fixed checkpoints but are set up quickly to effect the
element of surprise, and are less stan-
dardized than a review of registration papers, for the officer
must visually assess the sobriety of
the driver.
An important ruling, City of Indianapolis v. Edmond (2000),
limited the Sitz ruling to
sobriety checklanes. The Court decided (6–3) that a roadblock
whose primary purpose was gen-
eral law enforcement and the detection of ordinary criminal
wrongdoing, and not traffic safety,
violated the Fourth Amendment. Indianapolis police set up
roadblocks identified as “narcotics
checkpoints,” detained drivers for about two to three minutes
each, examined each driver’s
license and registration, and had a narcotics-detection dog walk
around the vehicle. In finding
this practice unconstitutional, the Court distinguished the
reasoning of pretext stops (Whren), of
brief checkpoint stops for purposes of detecting alcohol-
impaired drivers or illegal aliens (Sitz
and Martinez-Fuerte), and special needs (National Treasury
Employees Union v. Von Raab,

1989). The city argued that all other checkpoint stops upheld by
the Court employed arrests and
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criminal prosecutions in pursuit of other goals that were
essentially not the enforcement of the
criminal law. In a statement that captured the deep policy
concerns of the Court, Justice

O’Connor, in her majority opinion, replied:
If we were to rest the case at this high level of generality, there
would be little check
on the ability of the authorities to construct roadblocks for
almost any conceivable
law enforcement purpose. Without drawing the line at
roadblocks designed primari-
ly to serve the general interest in crime control, the Fourth
Amendment would do lit-
tle to prevent such intrusions from becoming a routine part of
American life. (City of
Indianapolis v. Edmond, 2000)
After a raft of cases that expanded the ability of police to stop
virtually any car, control the pas-
sengers, and examine all containers, the Court was faced with a
line, which if crossed might have
made the total surveillance of anyone walking abroad subject to
inspection. The Court was
informed by a brief by the National League of Cities that many
cities were prepared to initiate
narcotics checkpoints depending on the outcome of Edmond.
What was left unsaid was that a
ruling favorable to the government in Edmond could have
opened the door to virtually unrestrict-
ed on-the-street surveillance with drug-sniffing dogs and with
highly intrusive electronic and
thermal-sensing devices that penetrated the clothing of
individuals. It is noteworthy that the three
most conservative justices—Rehnquist, Scalia, and Thomas—
dissented but that swing jus-
tices—O’Connor and Kennedy—voted to declare such practices
unconstitutional.
Edmond was held not to prevent informational roadblocks. In

Illinois v. Lidster (2004),
police in Lombard, Illinois, partially blocked a highway to force
cars into a single lane. At the
checkpoint, an officer asked the occupants whether they had
seen anything happen there the
previous weekend. Each driver was handed a flyer that said
“ALERT . . . FATAL HIT & RUN
ACCIDENT.” It requested “assistance in identifying the vehicle
and driver in this accident
which killed a 70 year old bicyclist.” Each stop lasted about ten
to fifteen seconds. As Lidster
approached the roadblock, he swerved, nearly hit an officer, and
was arrested and convicted for
driving under the influence of alcohol. He challenged the
constitutionality of the roadblock stop.
The Supreme Court held that a roadblock of this type is
constitutional as long as it is reasonably
tailored to the particular circumstances of the case and to a
legitimate law enforcement function.
The stop in this case was constitutional for a variety of reasons.
The primary purpose of the stop
was not to investigate the occupants for criminal activity but to
obtain information about an un-
solved fatal hit-and-run that had occurred in the same area a few
days before. Such stops are brief
and not likely to produce anxiety. Police are not likely to ask
incriminating questions, any more
than would police questioning pedestrians in the vicinity of a
crime as to whether they have seen
anything suspicious. Voluntary requests for information “play a
vital role in police investigatory
work.” The traffic delays that result “should prove no more
onerous than many that typically
accompany normal traffic congestion.” The crime being
investigated was serious, and the infor-
mational checkpoint in this case was narrowly tailored to

getting specific information about it.
The law enforcement needs and the reasonableness of the
intrusion outweighed the minimal
interference with liberty in this case.
Terry at the Airport: Drug Stops and Drug Courier Profiles
The typical scenario of the cases in this section, previously
described in United States v.
Mendenhall (1980) (see Chapter 3), is for narcotics agents to
ask to speak with a person at an
airport. The officers regularly scan airports and other
transportation hubs for people who may be
transporting illegal drugs. These cases differ from those in
which agents have been tipped off by
informants that a specific courier is arriving at an airport.
Instead, the officers approach a person
on a hunch that he or she (often young people of college age)
may be carrying drugs or based on
a person fitting a “profile” of variables that seem to be
characteristic of drug couriers. The cases
in this section ask whether the facts amount to a voluntary
consent encounter, a Terry stop and
search, or an arrest. They also describe the path of the Court’s
cases that eventually accepted the
drug courier profile as a constitutional basis for an investigative
stop.
The drug courier profile was developed in the early 1970s by
DEA agent Paul Markonni,
who was working out of the Detroit Metropolitan Airport. He
borrowed the idea from an airplane
hijacker profile developed in the late 1960s. The use of drug
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the nation.32 “Because even local police officers now receive
high quality training by the DEA,
street level drug interdiction programs have resulted in
surprisingly few complaints of individual
police officer misconduct, such as unjustified, armed threats or
arbitrary harassment.”33 Stephen
Hall briefly describes how drug courier profiles are used:

One or more DEA agents (or other law enforcement officers)
observe individuals at
an airport for characteristics that match the profile. Agents
single out an individual
as a match, approach the suspect, and identify themselves as
law enforcement offi-
cers. They then ask the suspect’s name and destination. If the
Agents are still suspi-
cious, they usually ask the suspect to accompany them to
another location for further
questioning. At this point, agents ask the suspect to consent to a
search of his person,
luggage or both.34
In Mendenhall (1980), a young woman who deplaned at Detroit
Metropolitan Airport was
politely approached by DEA agents and asked to accompany
them to a room. (See “Consent
Searches” in Chapter 3.) After some discussion, Mendenhall
agreed to be searched by a female
officer in private, and drugs were found on her person.
Mendenhall can be read for three purpos-
es. First, given the numerous opinions of the justices, it
demonstrates the difficulty of sorting out
the facts to determine whether they amounted to a consent
encounter or a personal seizure.
Second, it shows a concern with drug courier profiles. Third, it
established the test for a seizure:
Did the person reasonably believe that he or she was not free to
leave in view of all of the circum-
stances surrounding the incident? Although the Mendenhall test
was modified to fit the contours
of the chase in Hodari D., it was, and still is, the standard that
is applied in airport scenarios.
The stop of Mendenhall at the airport was triggered by her

supposedly fitting the charac-
teristics of a drug courier profile. Justice Powell spoke
favorably of this device. He referred to
“highly skilled agents” carrying out a “highly specialized law
enforcement operation” being as-
signed to the Detroit airport “as part of a nationwide program to
intercept drug couriers trans-
porting narcotics between major drug sources and distribution
centers in the United States.” He
noted, “During the first 18 months of the program, agents
watching the Detroit Airport searched
141 persons in 96 encounters. They found controlled substances
in 77 of the encounters and ar-
rested 122 persons” (United States v. Mendenhall, 1980, Powell,
J., concurring). Despite this en-
dorsement, neither the lead opinion nor the concurrence in
Mendenhall was based on a blanket
acceptance of the profile. The tone of Justice White’s dissent
was less enthusiastic: “[T]he
Government sought to justify the stop by arguing that Ms.
Mendenhall’s behavior had given rise
to reasonable suspicion because it was consistent with portions
of the so-called ‘drug courier
profile,’ an informal amalgam of characteristics thought to be
associated with persons carrying
illegal drugs” (United States v. Mendenhall, 1980, White, J.,
dissenting). Although the majority
in Mendenhall held that the encounter did not violate the Fourth
Amendment, it did so on the
basis of consent. Mendenhall did not constitutionalize the drug
courier profile.
The Supreme Court expressed skepticism of profiles and found
no basis of reasonable sus-
picion in Reid v. Georgia (1980, per curiam). The mere fact that
a man who got off a plane in

Atlanta from Fort Lauderdale, Florida (a “principal place of
origin of cocaine sold elsewhere in
the country”), and, exiting in a single-file line, occasionally
looked back in the direction of an-
other man carrying a similar shoulder bag, who caught up with
Reid and exchanged a few words
with him, is hardly the kind of fact that creates a drug courier
profile or establishes reasonable
suspicion to support an investigative stop.
In Florida v. Royer (1983), the Supreme Court held that a
seizure at the airport violated Mark
Royer’s Fourth Amendment rights, but the justices could not
agree on a reason. Royer was ap-
proached by two county narcotics officers at the Miami
International Airport because he purported-
ly fit a drug courier profile: He had purchased a one-way ticket
to New York City, was carrying two
American Tourister suitcases that appeared to be heavy, was
casually dressed, appeared pale and
nervous, paid for his ticket in cash with a large number of bills,
and wrote only a name on the air-
line identification tag. The officers identified themselves and
asked Royer if he had a “moment” to
speak with them. He said yes. Without oral consent, he
produced his ticket and a driver’s license
upon request. He explained a discrepancy between his name and
the name “Holt” written on the
baggage tag by saying that a friend named Holt had made the
reservations. The officers did not
return the ticket or license but asked Royer to accompany them
to a room forty feet away. In the
small office, Royer was told that he was suspected of
transporting narcotics and was asked if he

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would consent to a search of the suitcases. Without orally
responding, Royer produced a key,
opened the baggage, and marijuana was found. These events
took about fifteen minutes.
The Court’s five-judge majority found that, by holding onto
Royer’s ticket and driver’s li-
cense, the officers had in effect arrested him without probable

cause. When police officers retain
these important documents, a reasonable person could not
believe that he is free to leave. Thus
when Royer went along with the police to the room, he did not
consent but had to follow or give
up his ticket and license! Holding these documents was the
equivalent of a show of force.
Four of the majority justices (White, Powell, Marshall, and
Stevens) also believed, however,
that facts in Royer established reasonable suspicion that would
have supported a temporary stop
and questioning of Royer to confirm or dispel the suspicion.
Because a majority did not share
this view, the Royer case did not establish the constitutionality
of drug courier profiles. It did in-
dicate that a number of justices were leaning in that direction.
Nevertheless, the majority felt that
the police actions of obtaining the key to Royer’s luggage went
beyond that justified by a Terry
stop. This was not a frisk for weapons, but a search for
evidence.
Justice Brennan, concurring, thought the majority was wrong to
comment on its belief that
reasonable suspicion existed. Four dissenting justices (Burger,
Blackmun, Rehnquist, and
O’Connor) believed that the acts of the police officers were
reasonable and would have upheld
the encounter as based on consent.
The next airport search case, United States v. Place (1983), held
the stop unconstitutional
because the brevity requirement of Terry was violated.
Raymond Place aroused the suspicions of
DEA agents at the Miami International Airport. They briefly

detained him for questioning. He
agreed to a search of his luggage, but because his airplane was
departing, the search was post-
poned. The agents called ahead to LaGuardia Airport in New
York City, where another team of
DEA agents observed Place when he arrived. Their suspicions
also aroused, they detained him
and told Place that they believed he was carrying narcotics.
Place did not consent to a search of
his luggage. The agents seized the bags, giving Place
information as to where they could be
retrieved. The bags were then sent to Kennedy Airport,
unopened, where a trained narcotics
detection dog indicated the presence of drugs. This process took
ninety minutes. After the posi-
tive identification, as it was Friday afternoon, the bags were
held until Monday, when a search
warrant was obtained and drugs were found in the bags.
Because Place was detained, not on probable cause but at best
on reasonable suspicion, the
extent of the detention must be “minimally intrusive of the
individual’s Fourth Amendment in-
terests.” By holding a person’s luggage, the person is detained
by the police although the person
is technically free to go. “[S]uch a seizure can effectively
restrain the person since he is subject-
ed to the possible disruption of his travel plans in order to
remain with his luggage or to arrange
for its return.” Thus the seizure of luggage at the airport
effectively “seizes” a person. Indeed, the
Terry brevity principle was violated simply by the length of the
detention of Place’s luggage.
Justice O’Connor noted:
Although the 90-minute detention of respondent’s luggage is

sufficient to render the
seizure unreasonable, the violation was exacerbated by the
failure of the agents to
accurately inform respondent of the place to which they were
transporting his lug-
gage, of the length of time he might be dispossessed, and of
what arrangements
would be made for return of the luggage if the investigation
dispelled the suspicion.
In short, we hold that the detention of respondent’s luggage in
this case went beyond
the narrow authority possessed by police to detain briefly
luggage reasonably sus-
pected to contain narcotics. (United States v. Place, 1983)
The constitutionality of drug courier profiles was finally upheld
in United States v.
Sokolow (1989). Andrew Sokolow was forcibly stopped by DEA
agents at the Honolulu airport
because he fit the following profile elements: He paid $2,100
for two airplane tickets from a roll
of $20 bills; he traveled under a name that did not match the
name under which his telephone
number was listed; his original destination was Miami, a source
city for illicit drugs; he stayed
in Miami for only forty-eight hours even though a round-trip
flight from Honolulu to Miami
takes twenty hours; he appeared nervous during his trip; and he
checked none of his luggage. He
wore the same black jumpsuit with gold jewelry on both his
outgoing and returning trips. In
Honolulu, Sokolow and a traveling companion were forcibly
stopped. They were taken to a DEA
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office at the airport, where a canine sniff indicated the presence
of drugs. Sokolow was arrested,
warrants were obtained to search his luggage, and over a
thousand grams of cocaine were found.
The Supreme Court held that a suspect fitting a drug courier
profile raises the mere suspi-
cion of the agent to the level of reasonable suspicion that allows
a Terry stop. The majority held

that the profile elements in this case amounted to reasonable
suspicion. Although each of the
facts separately is not indicative of criminality, taken together
they were out of the ordinary and
amounted to reasonable suspicion. Justice Rehnquist wrote,
“While a trip from Honolulu to
Miami, standing alone, is not a cause for any sort of suspicion,
here there was more: surely few
residents of Honolulu travel from that city for 20 hours to spend
48 hours in Miami during the
month of July.” Second, the Court ruled explicitly that
reasonable suspicion may be established
even though each articulable element of suspicion is innocent. It
is not necessary that there also
be evidence of ongoing criminal activity to establish reasonable
suspicion, as the lower court had
held. Finally, the majority also ruled that it was not necessary
for the officers to use the “least
intrusive means available to verify or dispel their suspicions
that he was smuggling narcotics,”
for example, by approaching the suspect and speaking with him,
rather than forcibly detaining
him. The least intrusive rule “would unduly hamper the police’s
ability to make swift on-the-spot
decisions—here, respondent was about to get into a taxicab—
and it would require courts to
‘indulge in “unrealistic second-guessing”’” (United States v.
Sokolow, 1989).
Justice Marshall offered a spirited attack on the drug courier
profiles in Sokolow but failed
to convince a majority that profiles are flawed. He noted that
many cases applying Terry required
evidence of ongoing criminality—such as taking evasive action,
“casing” a store, using an alibi,
or being pinpointed by an informant—to trigger the reasonable

suspicion standard. No such indi-
cator of criminality existed in this case. Next, he warned that
the mechanistic application of a
profile would “dull the officer’s ability and determination to
make sensitive and fact-specific
inferences ‘in light of his experience.’” Most telling, he
observed that what constituted profile
factors seemed to shift from case to case. Citing specific cases,
previously decided by lower
courts, he pointed out that the profile has been held to be
established by
• The fact that the suspect was the first to deplane, or was the
last to deplane, or got off in
the middle.
• That the suspect purchased a one-way ticket or a round-trip
ticket.
• That the suspect took a nonstop flight or that the suspect
changed planes.
• That the suspect had one shoulder bag or that the suspect had
a new suitcase.
• That the suspect was traveling alone or that the suspect was
traveling with a companion.
• That the suspect acted too nervously or that he acted too
calmly.
Justice Marshall thus demonstrated that the majority’s belief
that drug courier profiles are suffi-
ciently stable and reliable to authorize investigatory stops is
belied by the cases that show that
the elements of the profile may shift from case to case.
There is little research on the effectiveness of these profiles,
but a reporter’s sampling of
records at the New York, Miami, and Houston airports indicates

“a success rate of about
fifty–fifty.” A DEA spokesperson conceded that innocent
persons are stopped as often as guilty
ones, adding, “It’s not a science, . . . [i]t’s a technique.” The
story noted that those stopped
under a profile are often handcuffed and held for several hours,
including being taken to a hos-
pital for x-rays, before being released. The story also suggested
that African Americans and
Hispanics are stopped more frequently than whites, although the
DEA does not keep records of
airport stops that can confirm these observations. Finally, the
reporter also noted that drug
courier profiles are used on highways, in train stations, and on
interstate buses, although less
frequently than in airports.35
Most scholarly commentators are skeptical or critical of these
profiles. A primary reason is
given by Justice Marshall: “[N]o uniform drug courier profile
exists throughout the nation.
Instead, agents create their own individual profiles based on
their own professional experiences
and observations.”36 A trial court noted that the profile consists
of “anything that arouses the
agent’s suspicion.”37 Professors W. R. Janikowski and D. J.
Giacopassi point out that unlike the
Federal Aviation Administration’s “skyjacker profile,” which
was formulated by psychologists
and tested on half a million passengers yielding 1,406 stops and
sixteen arrests, “there is some
concern as to whether a profile truly exists or whether the
profile is, in reality, a loose and mal-
leable compilation of characteristics based on experiential
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exigencies of the situation.”38 A highly detailed analysis of the
use of the profiles by Morgan
Cloud, predating Sokolow, confirms Justice Marshall’s analysis
that the profiles are not predic-
tive. By relying on the profiles, the courts are abdicating their
constitutional responsibilities.39

Terry and Canine Detection Cases
The Court in United States v. Place (1983) commented
favorably on the canine sniff as an impor-
tant investigative technique because a “‘canine sniff’ by a well-
trained narcotics detection dog
“. . . does not require opening the luggage. It does not expose
noncontraband items that otherwise
would remain hidden from public view, as does, for example, an
officer’s rummaging through
the contents of the luggage. Thus, the manner in which
information is obtained through this in-
vestigative technique is much less intrusive than a typical
search.” This premise depended on a
second, that the sniff or alerting of trained dogs “discloses only
the presence or absence of nar-
cotics, a contraband item.” If this is true, then the dog sniff
reveals information that is limited to
contraband, to which the possessor has no constitutionally
protected right. The Court created a
special niche for the dog sniff technique: “In these respects, the
canine sniff is sui generis. We
are aware of no other investigative procedure that is so limited
both in the manner in which the
information is obtained and in the content of the information
revealed by the procedure.” As a re-
sult, Place held that where police have reasonable suspicion that
a person possesses drugs, a
trained drug-sniffing canine can properly be used to confirm its
presence.
The Supreme Court extended the scope of the dog-sniffing
technique in Illinois v.
Caballes (2005), which upheld the use of a trained dog to sniff
the car of a motorist stopped for
a traffic offense, where the stop did not exceed the time needed

to process the traffic matter and
was not accompanied by any suspicion against the driver.
Caballes was stopped for speeding
(6 miles per hour over the speed limit) on an interstate highway.
A member of the State Police
Drug Interdiction Team overheard the radio report and
immediately headed for the scene with his
narcotics-detection dog. The dog was walked around the
stopped vehicle and alerted at the trunk.
“Based on that alert, the officers searched the trunk, found
marijuana, and arrested respondent.
The entire incident lasted less than 10 minutes.” Caballes was
convicted of a narcotics offense.
The Illinois Supreme Court ruled the marijuana inadmissible
because the dog sniff was made
without articulable facts to suspect drug activity: It
“unjustifiably enlarged the scope of a routine
traffic stop into a drug investigation.”
The Supreme Court (6–2) reversed. Justice Stevens’s brief
majority opinion essentially
reiterated the logic of Place. The traffic stop was lawful, and
the dog sniff did not extend the time
of that stop. The sniff of the exterior of the car does not
compromise any legitimate interest in
privacy and so is not a search subject to the Fourth Amendment.
Justice Souter’s dissent threw cold water on the use of trained
dogs: “The infallible dog, how-
ever, is a creature of legal fiction.” He cited numerous cases
that indicated error rates in the use of
dogs from 7 to 38 percent. If a dog sniff is erroneous, then “the
dog does not smell the disclosed
contraband; it smells a closed container” (Illinois v. Caballes,
2005, Souter, J., dissenting). Since the
dog sniff is a police action used to find incriminating evidence,

it should be treated as a search, lim-
ited by Terry, and allowed only when police have reasonable
suspicion that contraband is present.
In her dissent, Justice Ginsburg argued that the fact that the
procedure in Caballes did not
extend the length of time of the stop did not mean that the scope
of the search was not extend-
ed. Caballes was stopped only for speeding, and his car was
sniffed only after he refused to give
consent to search, although it does not appear that the officer
who stopped his vehicle called for
the dog unit. In this view, “A drug-detection dog is an
intimidating animal” (Illinois v. Caballes,
2005, Ginsburg, J., dissenting). Even if trained dogs are
effective, “The Court has never
removed police action from Fourth Amendment control on the
ground that the action is well
calculated to apprehend the guilty.” Justice Ginsburg raised the
concern that “[t]oday’s deci-
sion, in contrast, clears the way for suspicionless, dog-
accompanied drug sweeps of parked cars
along sidewalks and in parking lots.” Both dissenting justices
made it clear that their opinions
were contextually related to drug detection and did not apply to
dogs trained to sniff out explo-
sives, dangerous chemicals, or biological weapons. A dog sniff
for such purposes “would be an
entirely different matter” because in its Fourth Amendment
cases, the “Court has distinguished
between the general interest in crime control and more
immediate threats to public safety”
(Illinois v. Caballes, 2005, Ginsburg, J., dissenting).40 Caballes
is not likely to be the last case
on the use of drug-detection dogs.

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LAW IN SOCIETY
Domestic Violence and Arrest
Domestic violence is a serious problem. “Approximately 20% of
emergency department visits
for trauma and 25% of homicides of women involve intimate
partner violence (IPV).”41 In 2001,

there were 588,000 nonfatal violent crimes against female
intimate partners and 103,000 against
male intimate partners, according to national victimization
surveys. This was a decline of 50 per-
cent in nonfatal IPV since 1994, mirroring the general decline
in crime in the late 1990s, but still
a very large number.42 It is estimated that only half of IPV
incidents are reported to police.43
Before police forces existed, arrests were executed by court-
appointed constables or citizens
acting on their own or organized into posses. Arrests for
traditional felonies like burglary and felony
assault were purely reactive. For the most part, wife beating
was condoned in English and American
society, and perpetrators were not subject to arrest or
prosecution, with the short-lived exception of
the Puritan communities in the Massachusetts Bay Colony,
where family violence was viewed as
sinful and “threatened the individual’s and the community’s
standing before God.”44 When nosy
neighbors and pastoral intervention failed to end family
violence, the courts intervened with crimi-
nal punishment.45 The Puritan example faded from history, and
domestic violence was forgotten as a
social problem and was ignored by organized police forces until
the mid-1970s.46
However, “[d]uring the last 25 years, social definitions of
domestic violence have evolved
from private wrongs to acts meriting an aggressive response
from the criminal justice system.
The change reflects the impact of the women’s movement, civil
liability lawsuits, changing
criminal justice system ideology and academic research.”47
Feminist demands for gender equali-

ty empowered women and “forced society at large to shake off
the selective social vision that
formerly took little notice of the physical abuse of spouses.”48
The arrest of suspected batterers
became a central issue in this major shift in social attitudes.
Prior to the 1970s, police called to the scene of a domestic
disturbance were prevented from
making arrests in some cases because the common law
misdemeanor arrest doctrine did not allow
arrests unless the crime took place in the officer’s presence.
Arrests might be made for violent
felonies where a spouse was severely injured, but much
depended on the officer’s discretion.
Officers who absorbed cultural norms that condoned spousal
abuse were disinclined to arrest.
Feminist arguments of the 1970s concerning violence against
women coincided with con-
servative “tough on crime” political agendas and were broadly
accepted. The common law misde-
meanor arrest rule was quickly changed by every state
legislature to allow police officers to arrest
if they had probable cause to believe that a suspect had
committed a misdemeanor involving
domestic violence.49 This change was important because two-
thirds of domestic violence cases are
classified as misdemeanors,50 and half of female victims of IPV
reported a physical injury.51
In the 1970s, the New York Police Department (NYPD)
pioneered a proactive approach to
domestic violence that emphasized counseling the alleged
batterer but leaving him (most perpe-
trators were male) in the premises. This approach was almost
immediately criticized by feminists

who understood male violence not simply as a private problem
but as a public problem. Those
concerned with women’s safety lobbied for the passage of
mandatory arrest laws.52 Changing
norms were having an effect on police practices.
Changing Norms and Domestic Violence Laws
By the mid-1980s, in addition to eliminating the misdemeanor
arrest rule in domestic violence
cases, all state legislatures provided legal and material
assistance to domestic violence victims,
including judicial protection orders, shelters for battered
women, and diversion programs for of-
fenders subjected to prosecution.53 Without legislation, some
police departments began to adopt
a law enforcement approach to domestic violence by the mid-
1970s.54 Police resistance to arrest-
ing batterers was partly overcome by experience with enforcing
protection orders and by several
successful civil lawsuits against police departments based on
cases where police virtually aban-
doned abused wives to vicious spouses.55
A national shift in mood was signaled by the U.S. Attorney
General’s Task Force on
Family Violence, which in 1984 declared, “Family violence
should be recognized and responded
to as a criminal activity.”56 Women’s and victim’s rights
groups “were particularly vocal in their
support of a more punitive approach.”57
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Impediments to Change: Police Discretion and Domestic
Violence
Legal rules regarding arrest define probable cause, the use of
force, the scope of a search incident,
and when a warrant is required. Yet no common law or
constitutional doctrine guides the vital
question of discretion: When is it proper for a police officer to
arrest or not arrest a suspect? Total
enforcement of criminal law is impossible. Police discretion to
arrest is inevitable for several

reasons:58 Some laws (e.g., disorderly conduct) are vague or
open-ended;59 police departments are
understaffed; and enforcing every minor offense to the
maximum extent is excessively rigid and
unfair. Police discretion typically is exercised by the lowest-
ranking officers with minimal guid-
ance from supervisors—a “low-visibility” practice that often
undermines the equal application of
the law. Ideally, police use discretion to arrest all serious
offenders and to mitigate the harshness
of the crime according to “common sense,” but it does not
always work that way.
Discretion can also breed unfairness if it is shaped by warped
“commonsense” values that
support widespread racist or sexist discrimination.60 Thus a
response to a domestic call—whether
by arrest, avoidance, lecturing, or clinical-type counseling—was
not a matter of departmental
policy but depended on the individual police officer’s beliefs
about the acceptability of spousal
abuse.61 The police reflected the larger society that
traditionally condoned spousal abuse to such
an extent that it was not considered a criminal act by many.62
Yet the crimes committed by a bat-
terer “include assault and/or battery, aggravated assault, intent
to assault or to commit murder,
and, in cases where the woman is coerced sexually, rape.”63
The combination of traditional views
and police discretion thus discouraged the arrest of batterers
before 1970.
Into this volatile mix of social and ideological change bearing
down on police practices came
one of the most influential social science studies ever
published: the Minneapolis experiment.64

The Minneapolis Experiment and the Replication Experiments
A 1984 report described a small-sample experiment in the
Minneapolis Police Department that
randomly assigned the type of police intervention to
misdemeanor domestic violence cases
before the police entered the house. Professors Lawrence
Sherman and Richard Berk showed
that arresting batterers reduced the number of domestic violence
reports for six months, when
compared to giving the parties on-the-spot mediation or simply
separating the couple.65
The report, suggesting that arrest alone deterred spousal abuse,
caused a sensation.
Criminologists were skeptical because the results contradicted
substantial research evidence that
specific programs generally do not measurably deter crime.
Nevertheless, the report had a
tremendous impact and accelerated police policies in favor of
arresting domestic violence perpe-
trators. Sherman publicized the research in the news media and
to the general public and police
chiefs.66 The study was published at a time when a trend
toward arresting batterers was already
under way and likely accelerated and legitimized the trend.67
Because the findings were controversial and the issue was
important, in the 1980s the National
Institute of Justice funded replications of the Minneapolis
experiment in Charlotte, Colorado Springs,
Miami, Milwaukee, and Omaha. The results of these
experiments unleashed a new barrage of contro-
versy: Most found no evidence of an unambiguous deterrent
effect of arrest on domestic violence re-

cidivism. In a book summarizing the Minneapolis experiment
and the Spouse Assault Replication
Project (SARP), Sherman, who conducted one of the
replications, summarized the paradoxical and
contradictory findings. First, the studies, viewed individually,
showed that arrest reduces domestic vi-
olence in some cities but increases it in others. One study
suggested that arrest may reduce domestic
violence only among employed people. Another indicated that
arrest might increase domestic vio-
lence in the long run. Sherman argued that police can predict
which couples are most likely to suffer
future violence, but our society values privacy too highly to
encourage preventive action.68
It would clearly be incoherent and unconstitutional to fine-tune
an arrest policy that man-
dates arrests of employed batterers but not those without a job!
Ultimately, Sherman favored
repealing mandatory arrest laws, allowing warrantless
misdemeanor arrests, and encouraging
police departments to develop local policies. He also favored
special units and policies to focus
on chronically violent couples.69
Mandatory Arrest: Policies, Polemics, and Findings
Despite the Minneapolis experiment and the adoption of pro-
arrest policies by many police
departments, as of 1992 only seven states mandated arrest. The
criminal trial of O. J. Simpson
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for the killing of his wife, Nicole Brown, whom he had
allegedly abused, galvanized the majori-
ty of states to pass mandatory or preferred arrest laws. As of
2005, thirty states had passed laws
mandating arrest when probable cause exists to believe that a
protection order was violated, and
another twenty-six plus the District of Columbia had laws with
either a mandatory or a pro-arrest
policy for domestic violence, whether or not a protection order
was violated.70

The SARP findings created controversy within feminist ranks.
Joan Zorza, a senior attor-
ney with the National Center on Women and Family Law,
continued to support the mandatory ar-
rest of batterers in an article critical of the replication studies.
She correctly pointed to the need
for broader coordinated efforts to deal effectively with domestic
violence, but her conclusion
about mandatory arrest did not entirely come to grips with the
SARP findings.71
A number of legal writers support mandatory arrest.72 Even
mandatory arrest policies and
laws, however, may not result in more arrests—a point borne
out in a study by Professor Kathleen
Ferraro, who observed arrest patterns by Phoenix police officers
in domestic cases under a mandato-
ry arrest law. Police discretion shaped how officers assessed the
existence of probable cause, leading
to questionable no-probable-cause decisions.73 Mandatory
arrest laws, therefore, are needed to coun-
teract police bias and send a message that arrest is the
appropriate response to battering. The point of
heated controversy among feminists concerns the argument that
mandatory arrest removes the deci-
sion to arrest from the victim’s control, where her fear and
powerlessness in an abusive relationship
are likely to prevent her from demanding the arrest of her
batterer. Proponents argue that mandatory
arrest laws may thus empower victims by giving them the
courage to call the police in the first place.
Also, a lax criminal justice system strengthens cultural norms
that tolerate domestic assaults, which
in turn perpetuate the social and political subjugation of
women.74

Other legal writers oppose mandatory arrest laws and their
prosecutorial “no-drop” coun-
terparts. They are skeptical of the lasting deterrent effect of
mandatory arrest and worry that
mandatory arrest and prosecution will lead to retaliation by the
abusing spouse and the loss of
economic support, putting the victim in a worse situation. But
the most heated point of
contention that raises ideological differences is the concern that
mandatory arrest laws will dis-
empower women who have been battered by their spouses or
boyfriends, undermine their auton-
omy, and fail to consider the unique circumstances of each
case.75
Mandatory Arrest: Empirical Studies
More recent empirical studies shed light on this issue but do not
provide unambiguous policy
direction. One study by Christopher D. Maxwell and colleagues
combined all of the SARP data
and examined the reduction of assaults using two measures:
official arrest records and interviews
with female victims six months after the initial police call.
Official records indicated increases in
assault in the follow-up period, while victim interviews
indicated a reduction in assault.
Unfortunately, 30 percent of the victims could not be
interviewed six months after the initial
assault. Not knowing whether the missing were victims of
retaliatory assaults casts some doubt
on the deterrent findings of those who were interviewed.
Further, even where arrest was shown
to have a deterrent effect, the strength of the arrest factor was
weak and overshadowed by factors
such as the offender’s prior criminal record.76

A national study by Richard B. Felson and colleagues, using
victimization data that were
more representative of the nation than the SARP data, found
that the effect of arrest on reoffend-
ing was not statistically significant; it tended toward deterrence,
but it was small. On the other
hand, the reporting of abuse by victims had a strong,
statistically significant deterrent effect. This
supports the women’s empowerment argument.77
An analysis of the interviews of victims in the Dade County
SARP study indicated that
arrest did have a short-term deterrent effect; 14 percent of the
victims of assault where batterers
were arrested experienced an episode of violence within six
months, compared to 21 percent
overall. The arrest of suspects was not related to the victim’s
perception of personal power, was
negatively related to the victim’s sense of legal power, and was
positively related to the victim’s
sense of safety. The latter finding, however, varied considerably
among the victims, and the best
predictor of recurrent violence was the level of stress in the
relationship. On the whole, Miller
concluded that Dade County victims “were unlikely to have
experienced long-term benefits as a
consequence of suspect arrest.”78
Rodney F. Kingsnorth and Randall C. MacIntosh’s study of
more than five thousand do-
mestic violence cases processed through the Sacramento County
prosecutor’s office examined
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victim support for arrest and prosecution. The researchers found
that support varied depending
on the victim’s race or ethnicity, sex, and age; marital,
cohabitation, and parental status; the
severity of the attack and injury; whether there was medical
treatment; prior incidents; and
whether there was a protective order. The study suggested that
“victims are engaged in a com-
plex decision making process in which they seek to weigh the

costs and benefits of involving
criminal justice system officials in their lives.”79 The study
strongly suggested that a victim’s
wishes usually ought to be taken into account.
Laura Dugan examined domestic victimization using national
data and comparing states
with strong versus weak protection order laws and mandatory
arrest provisions. She concluded
that “those households residing in states with aggressive
legislation have a lower probability of
domestic violence.”80
Conclusion
Overall, the studies tend to show that mandatory arrest alone
has at best a weak deterrent effect
on the reoccurrence of domestic violence; some studies have
found no effect. Further, the effect
of mandatory arrest differs by population, and victims usually
make rational decisions about the
overall effects that the arrest and prosecution of their abusers
will have on their lives. This in turn
suggests that policies that allow and even encourage arrest and
prosecution are preferable to
strict mandatory arrest policies. Unfortunately, the rational
weighing and discussion of policies
with great effects on people’s lives tend to be nonexistent in the
political arena. Having “found”
mandatory arrest and prosecutorial no-drop policies, politicians
can be expected to vigorously
endorse these policies.81
Even proponents of mandatory arrest laws support the need for
additional services.82

Within law enforcement, coordinated domestic violence teams
and prosecutors’ victim support
units increase victim support for these services, and an unusual
experiment with intensive bail
supervision found a deterrent effect on repeat victimization.83
Recently, police have formed part-
nerships with communities, and many communities have
established coordinated responses to
domestic violence.84
The police continue to play a critical role as gatekeeper in
domestic violence cases. The
arrest experiments have shed light on the exercise of police
discretion and are a part of the larg-
er arenas of study and action concerning domestic violence and
violence against women. Much
needs to be done in these areas, but this exploration
demonstrates the value of scientific inquiry
into legal and police processes.
Summary
Legal detentions, which are Fourth Amendment seizures, fall
into two categories: arrests supported by probable cause and
investigative stops supported by reasonable suspicion;
seizures may be legal or illegal. In addition, a person may
consent to speak with a law enforcement officer, which
requires no level of evidence. Police have no right to detain
people to investigate crimes unless they have probable cause.
A lawful arrest authorizes an officer to take a person into
custody to begin the process of prosecution. An officer with
only reasonable suspicion may temporarily detain a person
for brief questioning to confirm or dispel the suspicion.
When executing a warrant, police may detain residents dur-
ing the time the search is executed, and may handcuff them
for the duration of the search, if reasonable. An arrested per-

son may be thoroughly searched for evidence of crime or
weapons. A person briefly detained for an investigatory stop
may only be subjected to a “frisk”: a brief pat-down of outer
clothing to detect the presence of a weapon. The police have
a general duty to the public to arrest criminal perpetrators.
They do not have a specific duty to crime victims that is
enforceable by civil lawsuits—except in rare instances where
they establish a protective relationship that a person relies on
for protection.
The Supreme Court has issued two definitions of arrest:
(1) An arrest occurs when a person believes he or she is not free
to leave (Mendenhall), and (2) an arrest occurs when a person
is physically stopped (Hodari D.). A person fleeing from a
police officer is not seized until the person is physically
stopped. An arrested person loses his or her right to privacy and
may be kept in view of police at all times. An officer must have
probable cause before making an arrest. Probable cause is an
objective standard supported by facts, not by the officer’s good
faith. Proximity to a crime alone does not establish probable
cause. Every warrantless arrest is subjected to a probable cause
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determination by a judicial officer soon after an arrest—and
typically within forty-eight hours. Probable cause can also be
based on direct observation of an officer, hearsay, or reports
from other police departments. Misdemeanor arrests can be
made only for offenses committed in the officer’s presence, ex-
cept that in most states, by statute, misdemeanor arrests can be
made on probable cause in domestic violence cases. An arrest-
ed person can be taken into custody even if the underlying of-
fense does not carry a jail term. An arrest made with probable
cause is constitutional under the Fourth Amendment even if it
is not legal under state law. An illegal arrest does not deprive a
court of jurisdiction over a case. Evidence seized during an ille-
gal arrest is inadmissible, but evidence obtained during an
arrest based on probable cause that was in fact mistaken is ad-
missible. A citizen’s arrest may be made on probable cause, but
if mistaken, the person making the arrest is strictly liable for
the tort of false arrest. Police may use reasonable force to make
an arrest; they may use deadly force where it is reasonable. The
common law rule allowing an officer to shoot to kill a fleeing
felon even without evidence that the felon is armed and danger-

ous violates the Fourth Amendment because it is excessive and
unreasonable.
The Fourth Amendment does not require an arrest warrant
for a lawful arrest that is made in a public place, even if the po-
lice had time to obtain a warrant. On the other hand, police
must
have an arrest warrant to enter a person’s home to arrest that
person unless the entry is justified by an exigency. An exigency
is not created merely because the crime for which the arrest is
made is serious. Police cannot rely on an arrest warrant to enter
the home of a third party to arrest a person—such an entry has
to
be justified with a search warrant.
A person arrested for a crime that authorizes the officer to
take the person into custody may be thoroughly searched for
weapons and for evidence. The evidence from a search incident
to arrest need not pertain to the crime for which a person was
ar-
rested. A police officer who stops a speeding car and issues a
ci-
tation rather than making an arrest has no justification to search
the car. When a person is arrested, the police may search the
area within the person’s immediate control for weapons or evi-
dence but may not go beyond to search a house or other premis-
es. When police enter a premises and arrest a person, they may
look into the adjoining room, without any evidentiary basis, to
look for another person who could injure the officers. However,
to conduct a protective sweep of the entire premises to look for
a confederate of the arrested person, police must have reason-
able suspicion to believe that another person is in the house.
Police may conduct an inventory of all of an arrested person’s
belongings at a police lockup or jail; this is not a Fourth
Amendment search for evidence but an administrative proce-
dure designed to promote safety and to deter theft and false

claims of theft of the prisoner’s goods. A search incident to ar-
rest may be made at the police station. Pretrial detainees held in
a jail may be subjected to strip and body cavity searches only
when reasonable.
The Court has recognized the law enforcement power to
briefly detain suspects who are reasonably believed to be
involved
in criminal activity in order to question them about their
suspicious
activity and to frisk them for weapons. The standard of evidence
for such a stop and frisk is reasonable suspicion, a lesser
standard
than probable cause to believe that a crime has been committed
and that the suspect committed it. Reasonable suspicion can be
based on an officer’s expertise in drawing inferences from ob-
served facts, on an informant’s hearsay, from a verified and
reliable
anonymous call, or from a police bulletin. Reasonable suspicion
is
based on a totality of the circumstances, including inferences
from
facts. An investigatory stop must be brief and nonintrusive.
A person cannot be stopped on the street simply for iden-
tification under an indefinite vagrancy statute or because he or
she is standing in a high-crime neighborhood. A gang loitering
ordinance that makes it a crime for a gang member to simply
“loiter” and not disperse when so ordered violates the “void for
vagueness” doctrine of the Fourteenth Amendment. Statutes
that require lawfully stopped persons to provide their names are
constitutional. A person who is chased by a police officer is not
seized until the person is physically caught, and any property
that the person throws away before being caught has been aban-
doned and is not protected by the Fourth Amendment expecta-

tion of privacy. A person who flees from a police officer
without
provocation establishes reasonable suspicion for an
investigatory
stop.
Automobile drivers cannot be stopped at random on the
highway by police for a registration and license check with-
out probable cause or reasonable suspicion of a crime or a
motor vehicle violation. When a person is stopped in a car for
an investigatory stop, officers may visually scan the interior
of the car for weapons. There is no Fourth Amendment viola-
tion if an officer who stops a car for an existing traffic offense
did so for the purpose of searching for drugs—a pretext
search is constitutional. A drug courier profile can be the
basis for making a stop of a person in an automobile.
Reasonable suspicions to stop of a car may be based on a
combination of innocent facts. Once a car is stopped, the offi-
cer may, for safety’s sake, order the driver and passengers to
exit the automobile.
When police officers accost a person in a nonthreatening
manner in a space where the person would not ordinarily be free
to move about, such as at a factory workstation or in an interci-
ty bus, that fact alone does not turn a consensual encounter into
a seizure. A motorist stopped in an open sobriety checklane is
not seized for Fourth Amendment purposes. Police who accost a
person at an airport and ask to speak to him or her about drug
transportation do not seize that person unless they retain the
passenger’s ticket or luggage for more than a few moments. A
sniff of luggage or the exterior of a car (that has been lawfully
stopped) by a trained narcotics dog is not a Fourth Amendment
search. A person who gets off an airplane from Florida on an
early morning flight and looks behind him for a companion does
not fit a drug courier profile. A drug courier profile may be
based on a series of innocent facts that, when taken together, al-

lows an officer to draw a reasonable conclusion that the person
is a drug courier. Police have reasonable suspicion to stop a
per-
son who fits a drug courier profile.
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Legal Puzzles

HOW HAVE COURTS DECIDED THESE CASES?
Handcuff during Warrant Execution
4-1. Federal agents obtained search warrants in 2002 alleging
that the
Islamic Institute of Islamic Thought (“IIIT”), a tax-exempt
organiza-
tion located in Herndon, Virginia, illegally laundered and
funneled
money to terrorists. Iqbal Unus, Ph.D., was employed by IIIT.
Dr. Unus, his wife, Aysha, and their two teenage daughters,
including
Hanaa, aged eighteen, lived in a two-story, single-family
residence
in Herndon. The Unus’s are U.S. citizens and none had a
criminal
record.
On March 20, 2002, at 10:30 a.m., eleven federal agents
and three uniformed police officers executed a warrant to
search the Unus residence. (Warrants were executed against
fourteen homes and offices that day). They pounded on the
front door, ordering the occupants to open it. Aysha Unus was
in the living room at rear of the home and Hanaa Unus was up-
stairs, asleep in her bedroom. Aysha heard the pounding and a
voice commanding her to open the door, and saw a gun through
a side window as she inched toward the door. Frightened and
confused, Aysha began screaming for Hanaa, who came down-
stairs. They retreated to the rear, went into the living room, and
called 911. At this time, the officers broke through the front
door with a battering ram and an agent entered with a firearm
drawn. Hanaa reported that an agent “pointed [a gun] at me,
and he was yelling at me to drop the phone and put my hands
up.” Agents handcuffed Aysha and Hanaa behind their backs,
and placed them on a chair and sofa in the living room.

During the search, Aysha and Hanaa Unus remained hand-
cuffed in the family room for nearly four hours. They were per-
mitted to use the restroom upon request; Aysha was allowed to
self-administer her diabetes medication. Around 2:00 p.m., the
women were allowed to perform afternoon prayers, in accor-
dance with their Muslim faith, with handcuffs removed. Aysha
and Hanaa were not allowed to pray outside the presence of the
male agents, nor were they allowed to wear head scarves or
cover their hands while the male agents were present, or while
being photographed. After prayers the two women were no
longer handcuffed, but remained confined to the living room for
the duration of the search. Computers and documents were
seized. Agents left a copy of the warrant and a written inventory
of the items seized. (According to news accounts, no criminal
ac-
tion had been taken as of 2008). The Unus’ filed a civil suit
against the agents and the government.
Did the handcuffing and means of detention during the exe-
cution of the warrant violate the Fourth Amendment rights of
Aysha and Hanaa Unus?
Held: NO
4-1. Handcuffing is constitutional under the Fourth Amendment,
if
reasonable, while occupants are detained during the execution
of a search warrant. In Muehler v. Mena (2005) a two- to three-
hour detention of a woman handcuffed in her garage was rea-
sonable because officers were searching in a gang house for
dangerous weapons and a wanted gang member. The govern-
ment’s continuing safety interests were held to outweigh the
“marginal” intrusion.
In this case agents executed a facially valid search warrant.

Although they were searching only for financial documents, and
not for weapons or persons, a reasonable officer would have had
legitimate safety concerns. The search was one of many
conduct-
ed that day, at a residence believed to contain evidence of
money
laundering by entities suspected of assisting international
terror-
ism. Viewed objectively, the agents did not know whether they
would be confronted by resistance. Upon entry into the Unus
res-
idence, the agents encountered hectic conditions. “Excitement”
in
the plaintiffs’ voices, and the fact that the plaintiffs were
“clearly
concerned and worried and agitated” created a “possibility that
the women would take some action that would make an unstable
situation and that the agents would have to do something to get
control again.” The agent’s decision to initially handcuff the
women upon entry was reasonable.
It was reasonable for the agents to keep the women de-
tained in handcuffs for nearly four hours because the agents
were
executing a “terrorism-related warrant” and because the women
had “acted a certain way at the time of entry.” After “things had
calmed down a bit,” the agents moved the handcuffs from the
back to the front of the plaintiffs to make them more
comfortable.
The agents reassessed the situation as the search progressed,
however, entirely removing the handcuffs after the women per-
formed their afternoon prayers.
Unus v. Kane, 565 F.3d 103 (2d Cir. 2009).

Arrest—Use of Force
4-2. At 7:50 a.m. Bruce Weigel struck Wyoming State Trooper
Broad’s patrol car from the rear on I-25. Weigel careened to the
other side of the highway. Weigel told the troopers he did not
need medical attention and blamed the accident on his car’s
faulty steering linkage. While producing his vehicle documents,
Trooper Henderson smelled alcohol on Weigel’s breath. Weigel
agreed to perform a field sobriety test. As they approached the
interstate to return to Trooper Henderson’s patrol car, a van ap-
proached; the Trooper told Weigel to step back. Weigel walked
forward and was struck in the chest by the passing van’s side-
view mirror. At 7:54 a.m. Trooper Broad radioed for an ambu-
lance. Weigel continued trying to cross the interstate and other
witnesses described his behavior as bizarre and erratic.
Concerned for Weigel’s safety, Trooper Henderson wres-
tled him to the ground in a ditch alongside the highway. Weigel
fought vigorously. Trooper Henderson put Weigel in a
chokehold
but Weigel continued to resist and fight, even after being hand-
cuffed. A bystander lay across the back of Weigel’s legs. The
troopers maintained Weigel in a face-down position. Trooper
Broad applied pressure to Weigel’s upper body, including his
neck and shoulders, by using either one or both knees and his
hands. Weigel was bound with plastic cord. Weigel ceased to
struggle, as Trooper Henderson went to radio in a dispatch.
Before 8:00 a.m. Weigel stopped breathing and went into
cardiac
arrest. Attempts to resuscitate him were unsuccessful. The
autop-
sy revealed the most likely cause of Weigel’s death was “me-
chanical asphyxiation caused by inhibition of respiration by
weight applied to the upper back.”
Was excessive force used when Trooper Broad applied pressure

to Weigel’s upper body with his knees while Weigel was lying
face down and by keeping Weigel in a face-down position?
Holding available from instructor.
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Stop and Frisk—Reasonable Suspicion
4-3. At approximately 3:40 a.m. on 24 July 2006, Officer Coyle

of
the Carrboro PD responded to a report of a breaking and enter-
ing (B&E) in progress on South Peak Drive. Coyle arrived
within three minutes. While driving toward the location he
turned onto Old Pittsboro Road and observed someone riding a
bicycle on the road, within a quarter of a mile of the B&E loca-
tion. Old Pittsboro Road does not intersect with South Peak
Drive, but is connected to it via Daffodil Lane. The rear of the
bicycle had a flashing red light. Officer Coyle did not observe
anyone else in the area. He radioed other officers information
about the bicycle rider and proceeded to the house on South
Peak Drive. He observed that a window had been opened with
“a small, flathead screwdriver or a pry tool,” and notified other
officers of that information.
Officer Gandy was on patrol in her police vehicle. She
responded to the B&E call, received Officer Coyle’s call con-
cerning the bicyclist, and observed a man (Anthony Campbell)
riding a bicycle and turning from Old Pittsboro Road onto
South Greensboro Street. Campbell had an illuminated light on
his cap and the bicycle had a headlight and two flashing rear re-
flectors. Officer Gandy recognized Campbell by face but not by
name. She drove past Campbell, turned around, drove back past
him, and pulled off the road. She watched Campbell turn onto a
highway uphill on-ramp and stop at the top of the hill. Officer
Gandy turned on her spotlights and observed Campbell “play
with something” in his backpack.
Officer Gandy then approached Campbell, exited her vehi-
cle, and asked Campbell for his name and identification. After
this stop, Lt. Taylor arrived; he recognized Campbell as having
an
extensive history of B&Es. Campbell was detained, handcuffed,
and frisked. A small flashlight and a Swiss Army-type knife,
which could have used to open the window, were retrieved.

Campbell was arrested and a search incident to arrest of his
back-
pack yielded jewelry and burglar’s tools.
Did Officer Gandy have reasonable suspicion to stop
Campbell?
Stop and Frisk—Providing Identification
4-4. A party of about twenty people, including Hispanics and
African
Americans, turned violent when a fight erupted and two black
men were evicted. They returned shortly with Torrence Stratton,
who was described as wearing a “bright” shirt. They brandished
guns, were forced out, but returned immediately and fired shots,
striking several party-goers.
Pasco Police Officer Chavez, patrolling in an audio/video-
equipped car, was notified by dispatch about the shooting. He
spotted and followed a vehicle matching the dispatch
description,
and pulled in behind the suspect vehicle when it parked on a
side
street. He saw a black male dressed in a yellow shirt walking
away; he was Torrance Stratton. Officer Chavez testified that
Stratton “didn’t want to talk to me.” Defense counsel objected;
the court sustained the objection and instructed the jury to
disre-
gard that testimony. However, a video of Officer Chavez
stopping
Stratton was played to the jury. The man identified as Stratton
did
not clearly respond when asked his name three times.
Was Stratton’s Fifth Amendment right against self-

incrimination
violated when the jury was shown a video with him refusing to
identify himself to Officer Chavez during a Terry stop?
Further Reading
Human Rights Watch, Shielded from Justice: Police Brutality
and
Accountability in the United States (New York: Human Rights
Watch, 1998).
William Ker Muir Jr., Police: Streetcorner Politicians (Chicago:
University of Chicago Press, 1977).
Lawrence P. Tiffany, Donald M. McIntyre Jr., and Daniel L.
Rotenberg,
Detection of Crime (Boston: Little, Brown, 1967).
Useful Web Sites
National District Attorneys Association and American
Prosecutors
Research Institute
http://www.ndaa-apri.org/
Provides information about prosecutors. The American
Prosecutors
Research Institute lists many relevant publications and offers
downloadable reports.
Domestic Violence and Sexual Assault Data Resource Center
http://www.jrsa.org/dvsa-drc/index.html

Provides information on data collection and use in the states.
Identifies types of information currently obtained by state and
local
agencies and includes all aspects of domestic violence.
End Notes
1. Kenneth Adams et al., Use of Force by Police: Overview of
National and Local Data (Washington, D.C.: National Institute
of Justice and Bureau of Justice Statistics, October 1999).
2. Robert A. Shapiro, “Annotation: Personal Liability of
Policeman, Sheriff, or Similar Peace Officer or His Bond, for
Injury Suffered as a Result of Failure to Enforce Law or Arrest
Lawbreaker,” American Law Reports, 3rd series, 41 (1972, up-
dated weekly): 700; and Licia A. Esposito Eaton, “Annotation:
Liability of Municipality or Other Governmental Unit for
Failure to Provide Police Protection from Crime,” American
Law Reports, 5th series, 90 (2001, updated weekly): 273.
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3. Michael J. Glennon, “International Kidnapping: State-
Sponsored
Abduction: A Comment on United States v. Alvarez-Machain,”
American Society of International Law Newsletter 86 (October
1992): 746.
4. Brief of Amici Curiae Electronic Privacy Information Center
(EPIC), Privacy and Civil Rights Organizations, and Legal
Scholars and Technical Experts in Support of Petitioner,
Herring v.
United States, p. 6 (May 16, 2008).
5. These rules may have originated in the late eighteenth and
nine-
teenth centuries. See Thomas Y. Davies, “Recovering the
Original Fourth Amendment,” Michigan Law Review 98, no. 3
(1999): 547–750, 634–42, 724–26.
6. See J. Bradley Ortins, “District of Columbia Survey:
Warrantless Misdemeanor Arrest for Drunk Driving Found
Invalid in Schram v. District of Columbia,” Catholic University
Law Review 34 (1985): 1241–54.

7. David A. Sklansky, “The Private Police,” UCLA Law Review
46
(1999): 1165–1287, 1183.
8. Sklansky, “Private Police,” 1184.
9. F. J. Remington et al., Criminal Justice Administration:
Materials
and Cases, 1st ed. (Indianapolis: Bobbs–Merrill, 1969), 20.
10. Garner v. Memphis Police Department, 710 F.2d 240 (6th
Cir. 1983).
11. Jerome H. Skolnick and James J. Fyfe, Above the Law:
Police and
the Excessive Use of Force (New York: Free Press, 1993), 246.
12. Dan M. Kahan, David A. Hoffman, and Donald Braman,
“Whose Eyes Are You Going to Believe? Scott v. Harris and the
Perils of Cognitive Illiberalism,” Harvard Law Review 122
(2009): 837–906, 903.
13. Dorman v. United States, 435 F.2d 385, 392–93 (D.C. Cir.
1970).
14. Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1983).
15. Robin Lee Fenton, “Comment: The Constitutionality of
Policies
Requiring Strip Searches of All Misdemeanants and Minor
Traffic Offenders,” University of Cincinnati Law Review 54
(1985): 175–89, 180–81.
16. William J. Simonitsch, “Comment: Visual Body Cavity
Searches

Incident to Arrest: Validity under the Fourth Amendment,”
University of Miami Law Review 54 (2000): 665–88, 681–82.
17. Margo Schlanger, “Jail Strip-Search Cases: Patterns and
Participants,” Law and Contemporary Problems, 71(2008):
65–103, 73.
18. Hartline v. Gallo, 546 F.3d 95 (2d Cir. 2008).
19. D. Caute, The Year of the Barricades: A Journey through
1968
(New York: Harper and Row, 1988).
20. However, one biographer read Terry at face value as a
balancing
of law enforcement needs against privacy rights: G. Edward
White, Earl Warren: A Public Life (New York: Oxford
University Press, 1982), 276–78.
21. F. Graham, The Due Process Revolution: The Warren
Court’s
Impact on Criminal Law (New York: Hayden, 1970), 22–23.
22. P. Chevigny, Police Power: Police Abuses in New York City
(New
York: Pantheon, 1969).
23. M. Lippman, “The Drug War and the Vanishing Fourth
Amendment,” Criminal Justice Journal 14 (1992): 229–308.
24. M. McAlary, Buddy Boys: When Good Cops Turn Bad (New
York: Putnam’s, 1987), 87.
25. Daniel J. Steinbock, “National Identity Cards: Fourth and
Fifth
Amendment Issues,” Florida Law Review 56 (2004): 697–760.

26. T. J. Devetski, “Fourth Amendment Protection against
Unreasonable Seizure of the Person: The New (?) Common Law
Arrest Test for Seizure,” Journal of Criminal Law and
Criminology 82 (1992): 747–72.
27. Tracey Maclin, “Book Review: Seeing the Constitution from
the
Backseat of a Police Squad Car,” Boston University Law
Review
70 (1990): 543–91, 550 (emphasis added).
28. Maclin, “Book Review,” 550.
29. Marvin Zalman, “Fleeing from the Fourth Amendment,”
Criminal Law Bulletin 36, no. 2 (2000): 129–47.
30. David Moran, “The New Fourth Amendment Vehicle
Doctrine:
Stop and Search Any Car at Any Time,” Villanova Law Review
47 (2002): 815–38.
31. G. G. Ashdown, “Drugs, Ideology, and the
Deconstitutionalization
of Criminal Procedure,” West Virginia Law Review 95 (1992):
1–54, 22 (paragraph breaks omitted).
32. M. Cloud, “Search and Seizures by the Numbers: The Drug
Courier Profile and Judicial Review of Investigative Formulas,”
Boston University Law Review 65 (1985): 843–921, 844–45,
847–48; and S. E. Hall, “A Balancing Approach to the
Constitutionality of Drug Courier Profiles,” University of
Illinois Law Review 1993 (1993): 1007–36, 1009–10.
33. S. Guerra, “Domestic Drug Interdiction Operations: Finding
the

Balance,” Journal of Criminal Law and Criminology 82 (1992):
1109–61, 1114.
34. Hall, “A Balancing Approach,” 1010.
35. Lisa Belkin, “Airport Anti-Drug Nets Snare Many People
Fitting
‘Profiles,’” New York Times, March 20, 1990, 1.
36. Hall, “A Balancing Approach,” 1010–11.
37. Cases cited in Hall, “A Balancing Approach,” 1011, n. 35.
38. W. R. Janikowski and D. J. Giacopassi, “Pyrrhic Images,
Dancing Shadows, and Flights of Fancy: The Drug Courier
Profile as Legal Fiction,” Journal of Contemporary Criminal
Justice 9 (1993): 60–69.
39. Cloud, “Search and Seizures by the Numbers,” n. 32.
40. Justice Ginsberg cited Michigan Department of State Police
v.
Sitz (1990) and City of Indianapolis v. Edmond (2000) in
support.
41. L. Bensley, et al., “Prevalence of Intimate Partner Violence
and
Injuries—Washington, 1998,” Journal of the American Medical
Association 284, no. 5 (August 2, 2000): 559–60 (from the
Centers for Disease Control and Prevention: Morbidity and
Mortality Weekly Report).
42. Callie Marie Rennison, Crime Data in Brief: Intimate
Partner
Violence, 1993–2001 (Washington, D.C.: Bureau of Justice
Statistics, NCJ 197838, February 2003).
43. Callie Marie Rennison and Sarah Welchans, Special Report:

Intimate Partner Violence (Washington, D.C.: Bureau of Justice
Statistics, NCJ 178247, May 2000).
44. Elizabeth Pleck, Domestic Tyranny (New York: Oxford
University Press, 1987), 17.
45. Pleck, 18.
46. Pleck, 182.
47. Rodney F. Kingsnorth and Randall C. MacIntosh, “Domestic
Violence: Predictors of Victim Support for Official Action,”
Justice Quarterly 21, no. 2 (2004): 301–28, 301–2.
48. M. Zalman, “The Courts’ Response to Police Intervention in
Domestic Violence,” in E. S. Buzawa and C. G. Buzawa, eds.,
Domestic Violence: The Changing Criminal Justice Response
(Westport, Conn.: Auburn House, 1992), 79–110, 82.
49. Lisa G. Lerman, “Statute: A Model State Act: Remedies for
Domestic Abuse,” Harvard Journal on Legislation 21 (1984):
61–143, 126–27.
50. Patrick A. Langan and Christopher A. Innes, Special Report:
Preventing Domestic Violence against Women (Washington,
D.C.: Bureau of Justice Statistics, 1986).
51. Rennison and Welchans, Special Report: Intimate Partner
Violence.
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52. Marion Wanless, “Note: Mandatory Arrest: A Step toward
Eradicating Domestic Violence, But Is It Enough?” University
of
Illinois Law Review 1996 (1996): 533–75, 539–40.
53. Lerman, “Statute.”
54. International Association of Chiefs of Police, Training Key
245:
Wife Beating (Gaithersburg, Md.: International Association of
Chiefs of Police, 1976): “The officer who starts legal action
may
give the wife the courage she needs to realistically face and cor-
rect her situation.”

55. Ruth Gundle, “Civil Liability for Police Failure to Arrest:
Nearing v.
Weaver,” Women’s Rights Law Reporter 9, no. 3–4 (1986):
259–65,
259–60, 262. Injunction suits were brought: Bruno v. Codd,
90 Misc.2d 1047, 396 N.Y.S.2d 974 (Sup Ct. Special Term
1977),
rev’d in part, appeal dismissed in part, 64 A.D.2d 582, 407
N.Y.S.2d
165 (1978), aff’d, 47 N.Y.2d 582, 393 N.E.2d 976 (1979) (class
ac-
tion; consent decree entered to enforce protection orders); Scott
v.
Hart, No. C–76–2395 (N.D., Cal., filed Nov. 24, 1976); and
Raguz v.
Chandler, No. C–74–1064 (N.D., Ohio, filed Nov. 20, 1974).
56. U.S. Attorney General’s Task Force on Family Violence,
Report
(Washington, D.C.: U.S. Department of Justice, 1984).
57. A. Binder and J. Meeker, “The Development of Social
Attitudes
toward Spousal Abuse,” in Buzawa and Buzawa, eds., Domestic
Violence, 3–19, 12.
58. American Bar Association, Standards Relating to the Urban
Police Function (1972), 116; J. Goldstein, “Police Discretion
Not to Invoke the Criminal Process: Low-Visibility Decisions in
the Administration of Justice,” Yale Law Journal 69 (1960):
543–94; and William Ker Muir Jr., Police: Streetcorner
Politicians (Chicago: University of Chicago Press, 1977).
59. Indeed, legislatures at times assume that laws they pass will
not

be strictly enforced by the police. See M. Zalman, “Mandatory
Sentencing Legislation: Myth and Reality,” in M. Morash, ed.,
Implementing Criminal Justice Policies (Beverly Hills, Calif.:
Sage, 1982), 61–69.
60. K. C. Davis, Discretionary Justice: A Preliminary Inquiry
(Baton Rouge: Louisiana State University Press, 1969), 3, 5.
61. Muir, Police, 57, 82–100.
62. Lloyd Ohlin and Michael Tonry, “Family Violence in
Perspective,” in Ohlin and Tonry, eds., Family Violence
(Chicago:
University of Chicago Press, 1989), 1–18. A 1970 survey found
that 25 percent of the male respondents and 17 percent of the
fe-
males approved of a husband’s slapping his wife under certain
circumstances. Irene H. Frieze and Angela Browne, “Violence
in
Marriage,” in Ohlin and Tonry, eds., Family Violence, 165.
63. Del Martin, Battered Wives, rev. ed. (San Francisco:
Volcano
Press, 1981), 87–88.
64. R. B. Felson, J. M. Ackerman, and C. A. Gallagher, “Police
Intervention and the Repeat of Domestic Assault,” Criminology
43, no. 3 (2005): 563–88, 564.
65. The report was published in the Police Foundation Reports
(1984) and was based on a scholarly article: L. Sherman and
R. Berk, “The Specific Deterrent Effects of Arrest for Domestic
Violence,” American Sociological Review 49, no. 2 (1984):
261–72. The article was cautious in drawing policy conclusions.
66. R. Lempert, “Humility Is a Virtue: On the Publicization of

Policy-Relevant Research,” Law and Society Review 23 (1989):
146–61.
67. J. Zorza, “Must We Stop Arresting Batterers? Analysis and
Policy Implications of New Police Domestic Violence Studies,”
New England Law Review 28 (1994): 929–90, 935–36.
68. The Minneapolis report, L. Sherman’s replication report,
and a
general analysis of these issues are found in L. Sherman,
Policing Domestic Violence: Experiments and Dilemmas (New
York: Free Press, 1992).
69. Sherman, Policing Domestic Violence, 22–24.
70. G. Kristian Miccio, “A House Divided: Mandatory Arrest,
Domestic Violence, and the Conservatization of the Battered
Women’s Movement,” Houston Law Review 42 (2005):
237–323, n. 2.
71. Zorza, “Must We Stop Arresting Batterers?” 985.
72. Wanless, “Note: Mandatory Arrest,” 533–75; and Catherine
Popham Durant, “Note: When to Arrest: What Influences Police
Determination to Arrest When There Is a Report of Domestic
Violence?” Southern California Review of Law and Women’s
Studies 12 (2003): 301–35.
73. K. J. Ferraro, “Policing Women Battering,” Social Problems
36,
no. 1 (1989): 61–74.
74. E. S. Buzawa and C. G. Buzawa, “Domestic Violence,” in
Buzawa and Buzawa, Domestic Violence, 20.
75. Miccio, “A House Divided”; Jessica Dayton, “Student

Essay:
The Silencing of a Woman’s Choice: Mandatory Arrest and No
Drop Prosecution Policies in Domestic Violence Cases,”
Cardozo Women’s Law Journal 9 (2003): 281–97; and Erin L.
Han, “Note: Mandatory Arrest and No-Drop Policies: Victim
Empowerment in Domestic Violence Cases,” Boston College
Third World Law Journal 23 (2003): 159–91.
76. C. D. Maxwell, J. H. Garner, and J. A. Fagan, “The Effects
of
Arrest in Intimate Partner Violence: New Evidence from the
Spouse Assault Replication Program,” National Institute of
Justice Research in Brief (NCJ 188199, July 2001).
77. Felson, Ackerman, and Gallagher, “Police Intervention,”
581–82.
78. Joann Miller, “An Arresting Experiment: Domestic Violence
Victim Experiences and Perceptions,” Journal of Interpersonal
Violence 18, no. 7 (2003): 695–716, 708.
79. Kingsnorth and MacIntosh, “Domestic Violence,” 301–28,
321–22.
80. Laura Dugan, “Domestic Violence Legislation: Exploring Its
Impact on the Likelihood of Domestic Violence, Police
Involvement, and Arrest,” Criminology and Public Policy 2, no.
2 (2003): 283–312, 303.
81. See press release of Governor George Pataki of New York,
“Governor: Keep Mandatory Arrest in Domestic Violence Law”
(March 9, 2001), http://www.ny.gov/governor/press/01/
march9_01.htm (accessed July 24, 2006).
82. Wanless, “Note: Mandatory Arrest,” 562.
83. Thomas S. Whetstone, “Measuring the Impact of a Domestic

Violence Coordinated Response Team,” Policing 24, no. 3
(2001): 371–98; and James Lasley, “The Effect of Intensive Bail
Supervision on Repeat Domestic Violence Offenders,” Policy
Studies Journal, 31, no. 2 (2003): 187–207.
84. M. Reuland et al., Police-Community Partnerships to
Address
Domestic Violence (PERF, COPS, Department of Justice, n.d.);
and Alissa P. Worden, Models of Community Coordination in
Partner Violence Cases (NCJ 187351, 2001).
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232 Chapter 4
JUSTICES OF THE SUPREME COURT
Stalwart Conservatives, 1938–1962: Reed, Vinson, Burton,
Minton, and Whittaker
These five justices, appointees of Presidents Franklin D.
Roosevelt, Harry S. Truman, and Dwight D. Eisenhower, were
instrumental in delaying
the implementation of the due process “incorporation”
revolution of the 1960s. They were largely conservative in their
criminal procedure rulings,
both in denying the validity of the incorporation argument and
in construing the Due Process Clause narrowly. For the most
part, legal commen-
tators rank these justices as not especially distinguished: Their
vision of the Court’s role tended to be cramped, and they failed
to explain their
positions with intellectual force. They typically followed the
lead of justices with more manifest abilities, especially Justices
Felix Frankfurter and
John Marshall Harlan II. They displayed basic legal competence
but little independence in their decisions, and their opinions
were not written with
the high craft that is critical to shaping the law.
This group of justices, with Justice Tom Clark, formed a
majority of the Court from 1949 to 1953 (excluding Justice
Whittaker, who sat
from 1957 to 1962). From 1953 to 1962, a combination of
centrist and less dyed-in-the-wool conservatives kept the Court
from breaching the

Palko doctrine until Justice Clark’s decision in Mapp. With
Justice Frankfurter’s retirement and replacement by Justice
Arthur Goldberg in 1962,
the Court took a decidedly liberal turn that marked the Warren
Court of the 1960s.
Stanley F. Reed
Kentucky, 1884–1980
Democrat
Appointed by Franklin Delano Roosevelt
Years of Service: 1938–1957
Life and Career. Reed held B.A. degrees from Kentucky
Wesleyan College and Yale University and studied law
at the Sorbonne, Columbia University, and the University of
Virginia without graduating. He completed his legal
studies by reading law in a Kentucky lawyer’s office, and he
practiced from 1910 to the 1920s. He entered govern-
ment service under President Herbert Hoover but remained in
the attorney general’s office as a faithful New
Dealer under President Roosevelt. As solicitor general from
1935, he argued some of the key New Deal cases
before the Supreme Court and developed a good reputation for
legal craftsmanship. He was President Roosevelt’s
second appointment to the Supreme Court.
Contribution to Criminal Procedure. He was a stalwart supporter
of Justice Frankfurter and helped to block the
movement toward incorporation, applying the criminal
provisions of the Bill of Rights to the states.
Signature Opinion. Adamson v. California (1947). Justice

Reed’s majority opinion in Adamson kept the Court’s
anti-incorporation position intact. Adamson was tried for
murder; he did not take the stand in his own defense,
knowing that if he did so, prior convictions for burglary,
larceny, and robbery would have been introduced into evidence
to impeach him.
California law allowed the judge to comment to the jury on the
defendant’s silence. Writing for the majority, Reed relied on a
long train of cases,
including Twining v. New Jersey (1908), for the proposition
that the Self-Incrimination Clause was not a fundamental right
incorporated into the
Due Process Clause of the Fourteenth Amendment. He relied on
the Palko case, noting that this ruling allowed the states to
pursue their own crim-
inal procedure policies unfettered by rules under the Bill of
Rights that had limited the federal government. “It accords with
the constitutional doc-
trine of federalism by leaving to the states the responsibility of
dealing with the privileges and immunities of their citizens
except those inherent
in national citizenship.”
In addition, Justice Reed made it clear that he did not entirely
disapprove of the practical impact of a judge’s telling a jury
that they could
take the defendant’s refusal to testify into account in weighing
the evidence, even though by 1947 a majority of the states had
abolished the prac-
tice by statute or state constitutional rule. Adamson argued that
this placed a penalty on his right to silence under the California
constitution and
shifted the burden of proof from the government to him. Justice
Reed, to the contrary, noted: “[W]e see no reason why comment
should not be

made upon his silence. It seems quite natural that when a
defendant has opportunity to deny or explain facts and
determines not to do so, the pros-
ecution should bring out the strength of the evidence by
commenting upon defendant’s failure to explain or deny it. The
prosecution evidence may
be of facts that may be beyond the knowledge of the accused. If
so, his failure to testify would have little if any weight. But the
facts may be such
as are necessarily in the knowledge of the accused. In that case
a failure to explain would point to an inability to explain.”
Assessment. Justice Reed’s record was “liberal” in regard to
New Deal economic issues. He was a strong believer in judicial
restraint and feared
what he called “krytocracy,” or government by judges. He was a
judicial conservative in many civil liberties areas, and he voted
consistently with
Justice Frankfurter’s bloc. On the question of school
desegregation, he had consistently voted against segregated
facilities under the “separate but
equal” doctrine but was at first reluctant to overturn the
doctrine in Brown v. Board of Education (1954). After Chief
Justice Vinson died during
deliberations, Chief Justice Earl Warren persuaded Reed to join
a unanimous Court in overruling Plessy v. Ferguson (1896).
Further Reading
John D. Fassett, New Deal Justice: The Life of Stanley Reed of
Kentucky (New York: Vantage, 1994).
Collection of the Supreme
Court of the United States.
Photographer: Harris and Ewing.

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Fred M. Vinson
Kentucky, 1890–1953
Democrat
Appointed Chief Justice by Harry Truman

Life and Career. Vinson, born in Kentucky, was educated at
Kentucky Normal School and Centre College,
where he excelled in athletics and received a law degree.
Vinson practiced law from 1911 to 1931. Elected to the
House of Representatives in 1924, he rose to a position of
power on the Ways and Means Committee and, as a
loyal ally to Roosevelt, was instrumental in developing New
Deal tax and coal programs. He was appointed to the
U.S. Circuit Court for the District of Columbia in 1938 but
resigned during World War II to become director of
economic stabilization and later director of war mobilization.
He developed a strong friendship with President
Truman, who appointed him secretary of the treasury.
Vinson’s public philosophy, including his theory of the
Supreme Court’s role, was shaped by these momen-
tous events. He believed the federal government needed the
power to solve the enormous problems threatening the
nation. He was pragmatic and, while serving in all three
branches, had participated in the process through which
big government won the greatest war in history and tamed the
worst political-economic crisis in the life of the
United States. He had faith born of experience that American
political institutions and the American public had the
judgment to successfully resolve competing interests for the
public good.
Contribution to Criminal Procedure. In 1946, a liberal bloc of
four justices (Hugo Black, William O. Douglas, Frank Murphy,
and Wiley
Blount Rutledge) came close to inaugurating the incorporation
of the Bill of Rights. Justice Vinson opposed this action, and
during his tenure, the

number of justices opposed to incorporation increased as
Murphy and Rutledge were replaced by Clark and Minton.
Justices Felix Frankfurter and
Robert H. Jackson, while of a more liberal temperament and
more willing to find for defendants under the Due Process
Clause, were also opposed
to the incorporation doctrine.
Signature Opinion. Stack v. Boyle (1951). Although Justice
Vinson voted in favor of the federal government in its heavy-
handed repression of
American Communists in loyalty cases during the cold war, he
drew the line at the use of the courts to stifle traditional rights.
The right to bail came
up in Stack v. Boyle (1951). Pretrial bail was set at $50,000
each for leaders of the American Communist Party on trial for
the theoretical advocacy
of the violent overthrow of the government. Writing for the
Court, Justice Vinson held that the bail was excessive because it
was set at a figure high-
er than reasonably calculated to ensure that the defendants
would return to stand trial and submit to sentence. He wrote:
“This traditional right to
freedom before conviction permits the unhampered preparation
of a defense, and serves to prevent the infliction of punishment
prior to conviction.
Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of
struggle, would lose its meaning.”
Assessment. Justice Vinson believed in judicial restraint.
Having seen a conservative Supreme Court subvert the political
will at the beginning
of the New Deal, Vinson consistently voted to uphold the power
of government in civil liberties (in loyalty oath and Communist
conspiracy cases),

in economic affairs, and in criminal law. He was appointed
chief justice in part to calm several personal antagonisms that
had developed among
more brilliant justices, but his lack of constitutional vision and
craft made him an ineffective chief justice.
Further Reading
Melvin I. Urofsky, Division and Discord: The Supreme Court
under Stone and Vinson, 1941–1953 (Columbia: University of
South Carolina Press, 1997).
Harold Burton
Ohio, 1888–1964
Republican
Appointed by Harry S. Truman
Life and Career. Burton was born in Jamaica Plain,
Massachusetts, was educated at Bowdoin College and
Harvard Law School, and practiced law in the west before
settling in Cleveland. His political career included
service in the Ohio House of Representatives from 1929,
election to mayor of Cleveland in 1935—serving two
terms—and election to the U.S. Senate in 1941. Although a
Republican mayor, he cooperated with the national
government, a position taken by few midwestern Republicans.
Although sometimes critical of the Democratic
administration, Burton supported the economic and social
policies of the New Deal and the entry of the United
States into the United Nations. These positions made Burton an
acceptable Republican nominee by a Democratic

president. As with all of Truman’s nominees, the president and
Senator Burton were friends; Burton had been a
member of Truman’s committee to investigate wartime fraud.
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234 Chapter 4
Contribution to Criminal Procedure. Justice Burton was a
stalwart conservative in opposing the incorporation doctrine. In
confessions cases,
he was unwilling to use the Due Process Clause to exclude
confessions that the Court’s majority found coercive. On the
other hand, he was in the
minority in a case that held that a person who was electrocuted
and lived could be executed a second time without violating any
constitutional
provision, including the fundamental fairness aspect of due
process.
Signature Opinion. Rovario v. United States (1957). Writing for
a six-to-one majority, Justice Burton held that the identity of a
secret undercov-
er informant must be made known to the defendant, Rovario,
during a trial for heroin possession where the informer had
taken a material part in
bringing about Rovario’s possession of the drugs, had been
present with him while the crime occurred, and might have been
a material witness as
to whether he knowingly transported the drugs. Justice Burton
ruled that the so-called informer’s privilege is in reality the
government’s privilege
to withhold from disclosure the identity of those who furnish
information of violations of law to officers charged with
enforcing that law. This
“privilege” assists effective law enforcement by encouraging
people to inform about crime, but where it conflicts with
fundamental fairness, it
must give way to the defendant’s right to a fair trial. In effect,

where a conviction depends on the disclosure of the identity of
a secret informant,
the government must either divulge the informant’s identity or
dismiss the prosecution. Rovario indicates that the stalwart
conservatives in crimi-
nal procedure, while tending to favor the prosecution, adhered
to fundamental standards of a fair trial.
Assessment. On the Court, Justice Burton’s conservative
positions on civil liberties were close to those of Justice Reed.
As Chief Justice Vinson
and Justices Minton and Clark were appointed, they joined to
form what seemed to be a voting bloc that upheld the
government’s loyalty oath
programs.
Further Reading
Mary Frances Berry, Stability, Security, and Continuity: Mr.
Justice Burton and Decision-Making in the Supreme Court,
1945–1958 (Westport,
Conn.: Greenwood Press, 1978).
Sherman Minton
Indiana, 1890–1965
Democrat
Appointed by Harry S. Truman
Life and Career. Minton was born in Indiana, graduated at the
head of his class at Indiana University, studied
law at Yale University, and returned home to practice law while

engaging in local politics. In 1933, he was
appointed counselor to Indiana’s Public Service Commission.
He played a significant role in developing a state
version of the New Deal and was elected in 1934 to the U.S.
Senate, where he was a staunch supporter of the
Roosevelt administration. His legal knowledge and militant
manner in debate led to his rise to a Senate leadership
role in which he supported Roosevelt’s “court-packing” plan.
Minton was an internationalist, a position that was
not too popular in the Midwest, and he lost his Senate seat in
1940. He worked as a presidential assistant for the
next year and was appointed to the U.S. Court of Appeals for
the Seventh Circuit (Indiana, Illinois, and Wisconsin)
in 1941. It was Minton’s good fortune to be seated next to
another freshman senator, Harry S. Truman, in 1934.
They became and remained good friends, which was a key
element in each of Truman’s appointments to the
Supreme Court.
Contribution to Criminal Procedure. As a stalwart conservative
on criminal matters, Justice Minton joined the
Frankfurter-led bloc to halt any advance toward incorporation.
Signature Opinion. United States v. Rabinowitz (1950). He
wrote the majority opinion in Rabinowitz, which established the
rule that a search
incident to arrest could justify the search of the entire premises.
This rule stood until overturned by the Chimel decision in 1969.
Justice Minton
wrote: “What is a reasonable search is not to be determined by
any fixed formula. The Constitution does not define what are
‘unreasonable’
searches and, regrettably, in our discipline we have no ready
litmus-paper test. The recurring questions of the reasonableness
of searches must find
resolution in the facts and circumstances of each case.” In

Rabinowitz, Justice Minton viewed the search as reasonable
because the search and
seizure were incident to a valid arrest; the place of the search
was a business room to which the public was invited; the room
was small and under
the immediate and complete control of the respondent; the
search did not extend beyond the room used for unlawful
purposes; and the possession
of the forged stamps was a crime. The Court was clearly
influenced by the Crime Control Model of criminal justice: “A
rule of thumb requiring
that a search warrant always be procured whenever practicable
may be appealing from the vantage point of easy administration.
But we cannot
agree that this requirement should be crystallized into a sine
qua non to the reasonableness of a search. . . . The judgment of
the officers as to when
to close the trap on a criminal committing a crime in their
presence or who they have reasonable cause to believe is
committing a felony is not
determined solely upon whether there was time to procure a
search warrant. Some flexibility will be accorded law officers
engaged in daily battle
with criminals for whose restraint criminal laws are essential.”
Assessment. Justice Minton replaced liberal Justice Rutledge
and was thought by most observers at the time to be in the
liberal mold. However,
he fit very closely into the Vinson–Reed–Burton camp; as a
New Dealer, he acquiesced to Congress in economic matters,
but in civil rights issues,

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he had the most conservative record, voting for the government
even more than Chief Justice Vinson. As a judicial
conservative, he strongly
maintained that the Court had no special obligation to support
civil rights and that the Court had no power to legislate.
Further Reading

Harry L. Wallace, “Mr. Justice Minton: Hoosier Justice on the
Supreme Court,” Indiana Law Journal 34 (1959): 145–205.
Charles E. Whittaker
Missouri, 1901–1973
Republican
Appointed by Dwight D. Eisenhower
Life and Career. Whittaker was born and raised on a modest
Kansas farm, where he trapped small animals and
tracked game to supplement his family’s income. He attended
the University of Kansas City Law School at night
while working as a clerk in a law firm, graduating in 1924.
From then until 1954 (as partner from 1930), he prac-
ticed law in the same firm, which represented many large
corporations doing business in Missouri. He was first a
litigator and later an advisor to the firm’s large business clients.
He was active in bar association activities and
became president of the Missouri State Bar Association. In
1954, he was appointed by President Eisenhower as a
federal district judge and, in 1956, as a judge to the U.S. Court
of Appeals for the Eighth Circuit. Known for his
hard work and efficiency as a judge, he established conservative
credentials in ruling that a tenured professor in a
private university could be dismissed for refusing to answer
questions asked by a congressional committee and the
university’s board of trustees about possible Communist Party
affiliations. He was selected by President
Eisenhower as a conservative Republican judge to replace
Justice Reed.

Contribution to Criminal Procedure. Justice Whittaker strove to
put aside ideological considerations and
decide cases on their merits alone. This led to a somewhat
inconsistent position. While he voted for the defendant in a
number of cases, he also
opposed the incorporation of the Fourth Amendment
exclusionary rule in Mapp v. Ohio (1961).
Signature Opinion. Draper v. United States (1959). Writing for
a six-to-one majority, Whittaker ruled that probable cause
existed to arrest
Draper based on evidence given by a known reliable informant.
An officer was told that Draper, a known drug peddler in
Denver, would return by
train from Chicago with a supply of heroin. The informant
described the clothing that Draper would be wearing (a light-
colored raincoat, brown
slacks, and black shoes). The Court held that probable cause
existed because the officer, having corroborated every factual
element about Draper,
except the possession of drugs when he detrained, “had
‘reasonable grounds’ to believe that the remaining unverified
bit of [the informant’s]
information—that Draper would have the heroin with him—was
likewise true.”
Assessment. On the Court, Justice Whittaker aligned himself
with such conservatives as Justices Frankfurter, Harlan, Clark,
Burton, and Potter
Stewart to maintain a slim majority in several civil liberties and
criminal procedure cases. Unlike these conservative justices, he
never was able to
articulate a coherent philosophy of judging by which to guide
his opinions. Thus, when he did rule in favor of defendants, his
votes appeared to be

based more on emotional factors of sympathy than on a firm
understanding of the role of the federal judiciary. It would
appear that he did not out-
grow his position as a district court judge who could achieve
success in applying the law; as a Supreme Court justice, it is
necessary to expound
the contours of the Constitution in novel and difficult cases. It
is possible that Justice Whittaker’s abilities were overtaxed, for
he apparently put
in an enormous number of hours and worried substantially about
the cases. He fell ill in March 1962, apparently exhausted from
his work. He
resigned from the Court that year and accepted a position as a
legal advisor to the General Motors Corporation.
Further Reading
Barbara B. Christensen, “Mister Justice Whittaker: The Man on
the Right,” Santa Clara Law Review 19 (1979): 1039–62.
Photographer: Abdon Daoud
Ackad.
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236 Chapter 4
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