103 S.Ct. 2637
Alan I. Horowitz argued the cause for the United States.
With him on the briefs were Solicitor General Lee, Assistant Attorney General
Jensen, Deputy Solicitor General Frey, and John Fichter De Pue.
James D. Clark argued the cause and filed a brief for respondent.*
* Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Evelle J.
Younger, and
Howard G. Berringer filed a brief for Americans for Effective Law Enforcement,
Inc., et al. as amici curiae urging reversal.
Richard Emery and Charles S. Sims filed a brief for the American
Civil Liberties Union et al. as amici curiae urging affirmance.
Justice O'CONNOR delivered the opinion of the Court.
This case presents the issue whether the Fourth Amendment prohibits
law enforcement authorities from temporarily *698 detaining personal luggage
for exposure to a trained narcotics detection dog on the basis of reasonable
suspicion that the luggage contains narcotics. Given the enforcement
problems associated with the detection of narcotics trafficking and the
minimal intrusion that a properly limited detention would entail, we conclude
that the Fourth Amendment does not prohibit such a detention. On
the facts of this case, however, we hold that the police conduct exceeded
the bounds of a permissible investigative detention of the luggage.
I
Respondent Raymond J. Place's behavior aroused the suspicions
of law enforcement **2640 officers as he waited in line at the Miami International
Airport to purchase a ticket to New York's LaGuardia Airport. As
Place proceeded to the gate for his flight, the agents approached him and
requested his airline ticket and some identification. Place complied
with the request
and consented to a search of the two suitcases he had checked.
Because his flight was about to depart, however, the agents decided not
to search the luggage.
Prompted by Place's parting remark that he had recognized that
they were police, the agents inspected the address tags on the checked
luggage and noted discrepancies in the two street addresses. Further
investigation revealed that neither address existed and that the telephone
number Place had given the airline belonged to a third address on the same
street. On the basis of their encounter with Place and this information,
the Miami agents called Drug Enforcement Administration (DEA) authorities
in New York to relay their information about Place.
Two DEA agents waited for Place at the arrival gate at LaGuardia
Airport in New York. There again, his behavior aroused the suspicion
of the agents. After he had claimed his two bags and called a limousine,
the agents decided to approach him. They identified themselves as
federal narcotics agents, to which Place responded that he knew they were
"cops" and had spotted them as soon as he had deplaned. *699 One
of the agents informed Place that, based on their own observations and
information obtained from the Miami authorities, they believed that he
might be carrying narcotics. After identifying the bags as belonging
to him, Place stated that a number of police at the Miami Airport had surrounded
him and searched his baggage. The agents responded that their
information was to the contrary. The agents requested and received
identification from Place--a New Jersey driver's license, on which the
agents later ran a computer check that disclosed no offenses, and his airline
ticket receipt. When Place refused to consent to a search of his
luggage, one of the agents told him that they were going to take the luggage
to a federal judge to try to obtain a search warrant and that Place was
free to accompany them. Place declined, but obtained from one of the agents
telephone numbers at which the agents could be reached.
The agents then took the bags to Kennedy Airport, where they
subjected the bags to a "sniff test" by a trained narcotics detection dog.
The dog reacted positively to the smaller of the two bags but ambiguously
to the larger bag. Approximately 90 minutes had elapsed since the seizure
of respondent's luggage. Because it was late on a Friday afternoon,
the agents retained the luggage until Monday morning, when they secured
a search warrant from a magistrate for the smaller bag. Upon opening
that bag, the agents discovered 1,125 grams of cocaine.
Place was indicted for possession of cocaine with intent to distribute
in violation of > 21 U.S.C. S 841(a)(1). In the District Court, Place
moved to suppress the contents of the luggage seized from him at LaGuardia
Airport, claiming that the warrantless seizure of the luggage violated
his Fourth Amendment rights. [FN1] The District Court denied the
motion.
*700 Applying the standard of > Terry v. Ohio, 392 U.S. 1, 88 **2641
S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the detention of personal property,
it concluded that detention of the bags could be justified if based on
reasonable suspicion to believe that the bags contained narcotics.
Finding reasonable suspicion, the District Court held that Place's Fourth
Amendment rights were not violated by seizure of the bags by the DEA agents.
> 498 F.Supp. 1217, 1228 (EDNY 1980). Place pleaded guilty to the
possession charge, reserving the right to appeal the denial of his motion
to suppress.
FN1. In support of his motion, respondent also contended that the detention
of his person at both the Miami and LaGuardia airports was not based on
reasonable suspicion and that the "sniff test" of his luggage was conducted
in a manner that tainted the dog's reaction. > 498 F.Supp. 1217,
1221, 1228 (EDNY 1980). The District Court rejected both contentions.
As to the former, it concluded that the agents had reasonable suspicion
to believe that Place was engaged in criminal activity when he was detained
at the two airports and that the stops were therefore lawful. > Id.,
at 1225, 1226. On appeal, the Court of Appeals did not reach this
issue, assuming the existence of reasonable suspicion. Respondent Place
cross-petitioned in this Court on the issue of reasonable suspicion, and
we denied certiorari. > 457 U.S. 1106, 102 S.Ct. 2905, 73
L.Ed.2d 1314 (1982). We therefore have no occasion to address
the issue here.
On appeal of the conviction, the United States Court of Appeals
for the Second Circuit reversed. > 660 F.2d 44 (1981). The
majority assumed both that Terry principles could be applied to justify
a warrantless seizure of baggage on less than probable cause and that reasonable
suspicion existed to justify the investigatory stop of Place. The
majority concluded, however, that the prolonged seizure of Place's baggage
exceeded the permissible limits of a Terry -type investigative stop and
consequently amounted to a seizure without probable cause in violation
of the Fourth Amendment.
We granted certiorari, > 457 U.S. 1104, 102 S.Ct. 2901, 73 L.Ed.2d
1312 (1982), and now affirm.
II
> [1][2] The Fourth Amendment protects the "right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." (Emphasis added.) Although in the context
of personal property, and particularly containers, the Fourth Amendment
challenge is *701 typically to the subsequent search of the container rather
than to its initial seizure by the authorities, our cases reveal some general
principles regarding seizures. In the ordinary case, the Court has
viewed a seizure of
personal property as per se unreasonable within the meaning of the
Fourth Amendment unless it is accomplished pursuant to a judicial warrant
issued upon probable cause and particularly describing the items to be
seized. [FN2] See, e.g., > Marron v. United States, 275 U.S. 192,
196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). Where law enforcement
authorities have probable cause to believe that a container holds contraband
or evidence of a crime, but have not secured a warrant, the Court has interpreted
the Amendment to permit seizure of the property, pending issuance of a
warrant to examine its contents, if the exigencies of the circumstances
demand it or some other recognized exception to the warrant requirement
is present. See, e.g., > Arkansas v. Sanders, 442 U.S. 753, 761,
99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979); > United States v. Chadwick,
433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); > Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). [FN3]
For example, "objects such as weapons or contraband found in a public place
may be seized by the police without a warrant," > Payton v. New York, 445
U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), because, under
these circumstances, the risk of the item's disappearance or use for its
intended purpose before a *702 warrant may be obtained outweighs the interest
in possession. See also > G.M. Leasing Corp. v. United States, 429
**2642 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1975).
FN2. The Warrant Clause of the Fourth Amendment provides that "no Warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
FN3. In Sanders, the Court explained:
"The police acted properly--indeed commendably--in apprehending respondent
and his luggage. They had ample probable cause to believe that respondent's
green suitcase contained marihuana.... Having probable cause to believe
that contraband was being driven away in the taxi, the police were justified
in stopping the vehicle ... and seizing the suitcase they suspected contained
contraband." > 442 U.S., at 761, 99 S.Ct., at 2591.
The Court went on to hold that the police violated the Fourth Amendment
in immediately searching the luggage rather than first obtaining a warrant
authorizing the search. > Id., at 766, 99 S.Ct., at 2594. That
holding was not affected by our recent decision in > United States v. Ross,
456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982).
> [3] In this case, the Government asks us to recognize the reasonableness
under the Fourth Amendment of warrantless seizures of personal luggage
from the custody of the owner on the basis of less than probable cause,
for the purpose
of pursuing a limited course of investigation, short of opening the
luggage, that would quickly confirm or dispel the authorities' suspicion.
Specifically, we are asked to apply the principles of Terry v. Ohio, supra,
to permit such seizures on the basis of reasonable, articulable suspicion,
premised on objective facts, that the luggage contains contraband or evidence
of a crime. In our view, such application is appropriate.
In Terry the Court first recognized "the narrow authority of
police officers who suspect criminal activity to make limited intrusions
on an individual's personal security based on less than probable cause."
> Michigan v. Summers, 452 U.S. 692, 698, 101 S.Ct. 2587, 2591, 69 L.Ed.2d
340 (1981). In approving the limited search for weapons, or "frisk,"
of an individual the police reasonably believed to be armed and dangerous,
the Court implicitly acknowledged the authority of the police to make a
forcible stop of a person when the officer has reasonable, articulable
suspicion that the person has been, is, or is about to be engaged in criminal
activity. > 392 U.S., at 22, 88 S.Ct., at 1880. [FN4] That
implicit proposition was embraced openly in > Adams v. Williams, 407 U.S.
143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), where the Court relied
on Terry to hold that the police officer lawfully made a forcible stop
of the suspect to investigate an informant's tip that the suspect was carrying
*703 narcotics and a concealed weapon. See also Michigan v. Summers,
supra (limited detention of occupants while
authorities search premises pursuant to valid search warrant);
> United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621
(1981) (stop near border of vehicle suspected of transporting illegal aliens);
> United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d
607 (1975) (brief investigative stop near border for questioning about
citizenship and immigration status).
FN4. In his concurring opinion in Terry, Justice Harlan made this logical
underpinning of the Court's Fourth Amendment holding clear:
"In the first place, if the frisk is justified in order to protect
the officer during an encounter with a citizen, the officer must first
have constitutional grounds to insist on an encounter, to make a forcible
stop.... I would make it perfectly clear that the right to frisk
in this case depends upon the reasonableness of a forcible stop to investigate
a suspected crime." > 392 U.S., at 32-33, 88 S.Ct., at 1885-1886
(Harlan, J., concurring).
> [4] The exception to the probable-cause requirement for limited
seizures of the person recognized in Terry and its progeny rests on a balancing
of the competing interests to determine the reasonableness of the type
of seizure involved within the meaning of "the Fourth Amendment's general
proscription
against unreasonable searches and seizures." > 392 U.S., at 20,
88 S.Ct., at 1879. We must balance the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the importance
of the governmental interests alleged to justify the intrusion. When
the nature and extent of the detention are minimally intrusive of the individual's
Fourth Amendment interests, the opposing law enforcement interests can
support a seizure based on less than probable cause.
> [5] We examine first the governmental interest offered as a
justification for a brief seizure of luggage from the suspect's custody
for the purpose of pursuing a limited course of investigation. The
Government contends that, where the authorities possess specific and articulable
facts warranting a reasonable belief that a traveler's luggage contains
narcotics, the governmental interest in seizing the luggage briefly to
pursue further investigation is substantial. We agree. As observed
in United States v. Mendenhall, "[t]he public has a compelling interest
in detecting those who **2643 would traffic in deadly drugs for personal
profit." > 446 U.S. 544, 561, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497
(1980) (opinion of POWELL, J.).
> [6] Respondent suggests that, absent some special law enforcement
interest such as officer safety, a generalized interest in law enforcement
cannot justify an intrusion on an individual's Fourth Amendment interests
in the absence of *704 probable cause. Our prior cases, however,
do not support
this proposition. In Terry, we described the governmental interests
supporting the initial seizure of the person as "effective crime prevention
and detection; it is this interest which underlies the recognition
that a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest."
> 392 U.S., at 22, 88 S.Ct., at 1880. Similarly, in Michigan v. Summers
we identified three law enforcement interests that justified limited detention
of the occupants of the premises during execution of a valid search warrant:
"preventing flight in the event that incriminating evidence is found,"
"minimizing the risk of harm" both to the officers and the occupants, and
"orderly completion of the search." > 452 U.S., at 702-703, 101 S.Ct.,
at 2594. Cf. Florida v. Royer, 460 U.S. ----, ----, > 103 S.Ct. 1319,
1325, 75 L.Ed.2d 229 (1983) (plurality opinion) ("The predicate permitting
seizures on suspicion short of probable cause is that law enforcement interests
warrant a limited intrusion on the personal security of the suspect").
The test is whether those interests are sufficiently "substantial," > 452
U.S., at 699, 101 S.Ct., at 2592, not whether they are independent of the
interest in investigating crimes effectively and apprehending suspects.
The context of a particular law enforcement practice, of course, may affect
the determination whether a brief intrusion on Fourth Amendment interests
on less than probable cause is
essential to effective criminal investigation. Because of the
inherently transient nature of drug courier activity at airports, allowing
police to make brief investigative stops of persons at airports on reasonable
suspicion of drug-trafficking substantially enhances the likelihood that
police will be able to prevent the flow of narcotics into distribution
channels. [FN5]
FN5. Referring to the problem of intercepting drug couriers in the nation's
airports, Justice POWELL has observed:
"Much of the drug traffic is highly organized and conducted by sophisticated
criminal syndicates. The profits are enormous. And many drugs
... may be easily concealed. As a result, the obstacles to detection
of illegal conduct may be unmatched in any other area of law enforcement."
> United States v. Mendenhall, 446 U.S., at 561-562, 100 S.Ct., at 1880-1881
(opinion of POWELL, J.).
See > Florida v. Royer, 460 U.S., at ----, 103 S.Ct., at 1335 (BLACKMUN,
J., dissenting) ("The special need for flexibility in uncovering illicit
drug couriers is hardly debatable") (airport context).
*705 Against this strong governmental interest, we must weigh
the nature and extent of the intrusion upon the individual's Fourth Amendment
rights when the police briefly detain luggage for limited investigative
purposes. On this
point, respondent Place urges that the rationale for a Terry stop of
the person is wholly inapplicable to investigative detentions of personalty.
Specifically, the Terry exception to the probable-cause requirement is
premised on the notion that a Terry -type stop of the person is substantially
less intrusive of a person's liberty interests than a formal arrest.
In the property context, however, Place urges, there are no degrees of
intrusion. Once the owner's property is seized, the dispossession
is absolute.
We disagree. The intrusion on possessory interests occasioned
by a seizure of one's personal effects can vary both in its nature and
extent. The seizure may be made after the owner has relinquished
control of the property to a third party or, as here, from the immediate
custody and control of the owner. [FN6] Moreover, the police **2644 may
confine their investigation *706 to an on- the-spot inquiry--for example,
immediate exposure of the luggage to a trained narcotics detection dog
[FN7]--or transport the property to another location. Given the fact that
seizures of property can vary in intrusiveness, some brief detentions of
personal effects may be so minimally intrusive of Fourth Amendment interests
that strong countervailing governmental interests will justify a seizure
based only on specific articulable facts that the property contains contraband
or evidence of a crime.
FN6. One need only compare the facts of this case with those in > United
States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970).
There the defendant had voluntarily relinquished two packages of coins
to the postal authorities. Several facts aroused the suspicion of
the postal officials, who detained the packages, without searching them,
for about 29 hours while certain lines of inquiry were pursued. The
information obtained during this time was sufficient to give the authorities
probable cause to believe that the packages contained counterfeit coins.
After obtaining a warrant, the authorities opened the packages, found counterfeit
coins therein, resealed the packages and sent them on their way.
Expressly limiting its holding to the facts of the case, the Court concluded
that the 29-hour detention of the packages on reasonable suspicion that
they contained contraband did not violate the Fourth Amendment. >
Id., at 253, 90 S.Ct., at 1032.
As one commentator has noted, "Van Leeuwen was an easy case for the
Court because the defendant was unable to show that the invasion intruded
upon either a privacy interest in the contents of the packages or a possessory
interest in the packages themselves." 3 W. LaFave, Search and Seizure
S 9.6, p. 60 (1982 Supp.).
FN7. Cf. Florida v. Royer, 460 U.S. ----, ----, > 103 S.Ct. 1319,
1326, 75 L.Ed.2d 229 (1983) (plurality opinion) ("We agree with the
State that [the officers had] adequate grounds for suspecting Royer of
carrying drugs and for temporarily detaining him and his luggage while
they attempted to verify or dispel their suspicions in a manner that did
not exceed the limits of an investigative detention") (emphasis added).
> [7] In sum, we conclude that when an officer's observations
lead him reasonably to believe that a traveler is carrying luggage that
contains narcotics, the principles of Terry and its progeny would permit
the officer to detain the luggage briefly to investigate the circumstances
that aroused his suspicion, provided that the investigative detention is
properly limited in scope.
The purpose for which respondent's luggage was seized, of course,
was to arrange its exposure to a narcotics detection dog. Obviously,
if this investigative procedure is itself a search requiring probable cause,
the initial seizure of respondent's luggage for the purpose of subjecting
it to the sniff test--no matter how brief--could not be justified on less
than probable cause. See > Terry v. Ohio, 392 U.S., at 20, 88 S.Ct.,
at 1879; > United States v. Cortez, 449 U.S. 411, 421, 101 S.Ct.
690, 697, 66 L.Ed.2d 621 (1981); > United States v. Brignoni-Ponce,
422 U.S. 873, 881-882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975);
> Adams v. Williams, 407 U.S. 143, 146, 92
S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).
The Fourth Amendment "protects people from unreasonable government
intrusions into their legitimate expectations *707 of privacy." >
United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d
538 (1977). We have affirmed that a person possesses a privacy interest
in the contents of personal luggage that is protected by the Fourth Amendment.
> Id., at 13, 97 S.Ct., at 2484. A "canine sniff" by a well-trained
narcotics detection dog, however, does not require opening the luggage.
It does not expose noncontraband items that otherwise would remain hidden
from public view, as does, for example, an officer's rummaging through
the contents of the luggage. Thus, the manner in which information
is obtained through this investigative technique is much less intrusive
than a typical search. Moreover, the sniff discloses only the presence
or absence of narcotics, a contraband item. Thus, despite the fact
that the sniff tells the authorities something about the contents of the
luggage, the information obtained is limited. This limited disclosure
also ensures that the owner of the property is not subjected to the embarrassment
and inconvenience entailed in less discriminate and more intrusive investigative
methods.
> [8] 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 **2645 information
revealed by the procedure. Therefore, we conclude that the particular
course of investigation that the agents intended to pursue here--exposure
of respondent's luggage, which was located in a public place, to a trained
canine--did not constitute a "search" within the meaning of the Fourth
Amendment.
III
> [9] There is no doubt that the agents made a "seizure" of Place's
luggage for purposes of the Fourth Amendment when, following his refusal
to consent to a search, the agent told Place that he was going to take
the luggage to a federal judge to secure issuance of a warrant. As
we observed in Terry, "[t]he manner in which the seizure ... [was] conducted
*708 is, of course, as vital a part of the inquiry as whether [it was]
warranted at all." > 392 U.S., at 28, 88 S.Ct., at 1883. We
therefore examine whether the agents' conduct in this case was such as
to place the seizure within the general rule requiring probable cause for
a seizure or within Terry 's exception to that rule.
> [10] At the outset, we must reject the Government's suggestion
that the point at which probable cause for seizure of luggage from the
person's presence becomes necessary is more distant than in the case of
a Terry stop of the person himself. The premise of the Government's
argument is that seizures of property are generally less intrusive than
seizures of the person. While true
in some circumstances, that premise is faulty on the facts we address
in this case. The precise type of detention we confront here is seizure
of personal luggage from the immediate possession of the suspect for the
purpose of arranging exposure to a narcotics detection dog. Particularly
in the case of detention of luggage within the traveler's immediate possession,
the police conduct intrudes on both the suspect's possessory interest in
his luggage as well as his liberty interest in proceeding with his itinerary.
The person whose luggage is detained is technically still free to continue
his travels or carry out other personal activities pending release of the
luggage. Moreover, he is not subjected to the coercive atmosphere
of a custodial confinement or to the public indignity of being personally
detained. Nevertheless, such a seizure can effectively restrain the
person since he is subjected to the possible disruption of his travel plans
in order to remain with his luggage or to arrange for its return. [FN8]
Therefore, when the police seize luggage from the *709 suspect's custody,
we think the limitations applicable to investigative detentions of the
person should define the permissible scope of an investigative detention
of the person's luggage on less than probable cause. Under this standard,
it is clear that the police conduct here exceeded the permissible limits
of a Terry -type investigative stop.
FN8. "At least when the authorities do not make it absolutely clear
how
they plan to reunite the suspect and his possessions at some future
time and place, seizure of the object is tantamount to seizure of the person.
This is because that person must either remain on the scene or else seemingly
surrender his effects permanently to the police." 3 W. LaFave, Search
and Seizure S 9.6, p. 61 (1982 Supp.).
> [11] The length of the detention of respondent's luggage alone
precludes the conclusion that the seizure was reasonable in the absence
of probable cause. Although we have recognized the reasonableness of seizures
longer than the momentary ones involved in Terry, Adams, and Brignoni-Ponce,
see Michigan v. Summers, supra, the brevity of the invasion of the individual's
Fourth Amendment interests is an important factor in determining whether
the seizure is so minimally intrusive as to be justifiable on reasonable
suspicion. Moreover, in assessing the effect of the length of the
detention, we take into account whether the police diligently pursue their
investigation. We note that here the New York agents knew the time of Place's
scheduled arrival at LaGuardia, **2646 had ample time to arrange for their
additional investigation at that location, and thereby could have minimized
the intrusion on respondent's Fourth Amendment interests. [FN9] Thus,
although we decline to adopt any outside time limitation for a permissible
Terry stop, [FN10] we have never *710 approved a seizure of the person
for the prolonged 90-minute
period involved here and cannot do so on the facts presented by this
case. See > Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d
824 (1979).
FN9. Cf. Florida v. Royer, 460 U.S. ----, ----, > 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983) (plurality opinion) ("If [trained narcotics detection dogs] had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out"). This course of conduct also would have avoided the further substantial intrusion on respondent's possessory interests caused by the removal of his luggage to another location.
FN10. Cf. ALI, Model Code of Pre-Arraignment Procedure S 110.2(1) (1975) (recommending a maximum of 20 minutes for a Terry stop). We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation.
> [12] Although the 90-minute detention of respondent's luggage
is sufficient to render the seizure unreasonable, the violation was exacerbated
by the
failure of the agents to accurately inform respondent of the place
to which they were transporting his luggage, of the length of time he might
be dispossessed, and of what arrangements would be made for return of the
luggage if the investigation dispelled the suspicion. In short, we
hold that the detention of respondent's luggage in this case went beyond
the narrow authority possessed by police to detain briefly luggage reasonably
suspected to contain narcotics.
IV
We conclude that, under all of the circumstances of this case,
the seizure of respondent's luggage was unreasonable under the Fourth Amendment.
Consequently, the evidence obtained from the subsequent search of his luggage
was inadmissible, and Place's conviction must be reversed. The judgment
of the Court of Appeals, accordingly, is affirmed.
It is so ordered.
(Keep reading for concurring opinions or return to Home Page)
Justice BRENNAN, with whom Justice MARSHALL joins, concurring
in the result.
In this case, the Court of Appeals assumed both that the officers
had the "reasonable suspicion" necessary to justify an "investigative"
stop of respondent under > Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), and its progeny, and that the principles of Terry apply
to seizures of property. See > United States v. Place, 660 F.2d 44,
50 (CA2 1981);
> ante, at 2640-2641. The court held simply that "the prolonged
seizure of [respondent's] baggage went far beyond a mere investigative
stop and amounted to a violation of his Fourth Amendment rights."
> United States v. Place, 660 F.2d, at 50. See also > id., *711 at
52, 53. I would affirm the Court of Appeals' judgment on this ground.
Instead of simply affirming on this ground and putting an end
to the matter, the Court decides to reach, and purportedly to resolve,
the constitutionality of the seizure of respondent's luggage on less than
probable cause and the exposure of that luggage to a narcotics detection
dog. See > ante, at 2644- 2645. Apparently, the Court finds
itself unable to "resist the pull to decide the constitutional issues involved
in this case on a broader basis than the record before [it] imperatively
requires." > Street v. New York, 394 U.S. 576, 581, 89 S.Ct. 1354,
1360, 22 L.Ed.2d 572 (1969). Because the Court reaches issues unnecessary
to its judgment and because I cannot subscribe to the Court's analysis
of those issues, I concur only in the result.
I
I have had occasion twice in recent months to discuss the limited
scope of the exception to the Fourth Amendment's probable **2647 cause
requirement created by Terry and its progeny. See Florida v. Royer,
460 U.S. ----, ----, > 103 S.Ct. 1319, 1330, 75 L.Ed.2d 229 (1983) (BRENNAN,
J., concurring in the
result); Kolender v. Lawson, --- U.S. ----, ----, > 103 S.Ct.
1855, 1861, 75 L.Ed.2d 903 (1983) (BRENNAN, J., concurring). Unfortunately,
the unwarranted expansion of that exception which the Court endorses today
forces me to elaborate on my previously expressed views.
the
result); Kolender v. Lawson, --- U.S. ----, ----, > 103 S.Ct.
1855, 1861, 75 L.Ed.2d 903 (1983) (BRENNAN, J., concurring). Unfortunately,
the unwarranted expansion of that exception which the Court endorses today
forces me to elaborate on my previously expressed views.
In Terry the Court expressly declined to address "the constitutional
propriety of an investigative 'seizure' upon less than probable cause for
purposes of 'detention' and/or interrogation." > 392 U.S., at 19,
n. 16, 88 S.Ct., at 1879, n. 16. [FN1] The Court was confronted *712
with "the quite narrow question" of "whether it is always unreasonable
for a policeman to seize a person and subject him to a limited search for
weapons unless there is probable cause for an arrest." > Id., at
15, 88 S.Ct., at 1876. In addressing this question, the Court noted
that it was dealing "with an entire rubric of police conduct--necessarily
swift action predicated upon the on-the- spot observations of the officer
on the beat--which historically has not been, and as a practical matter
could not be, subjected to the warrant procedure." > Id., at 20,
88 S.Ct., at 1879. As a result, the conduct involved in the case
had to be "tested by the Fourth Amendment's general proscription against
unreasonable searches and seizures." Ibid. (footnote omitted).
The Court's inquiry into the "reasonableness" of the conduct at issue was
based on a " 'balancing [of] the need to search [or seize] against the
invasion which the
search [or seizure] entails.' " > Id., at 21, 88 S.Ct., at 1879,
quoting > Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537,
87 S.Ct. 1727, 1733-1734, 1734-1735, 18 L.Ed.2d 930 (1967). The Court
concluded that the officer's conduct was reasonable and stated its holding
as follows:
FN1. The "seizure" at issue in > Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), was the actual physical restraint imposed
on the suspect. > Id., at 19, 88 S.Ct., at 1879. The Court
assumed that the officer's initial approach and questioning of the suspect
did not amount to a "seizure." > Id., at 19, n. 16, 88 S.Ct., at
1879, n. 16. The Court acknowledged, however, that "seizures" may
occur irrespective of the imposition of actual physical restraint.
The Court stated that "[i]t must be recognized that whenever a police officer
accosts an individual and restrains his freedom to walk away, he has 'seized'
that person." > Id., at 16, 88 S.Ct., at 1877. See also > id.,
at 19, n. 16, 88 S.Ct., at 1879, n. 16. This standard, however, is
easier to state than it is to apply. Compare > United States v. Mendenhall,
446 U.S. 544, 550-557, 100 S.Ct. 1870, 1875-1878, 64 L.Ed.2d 497 (1980)
(opinion of Stewart, J.), with Florida v. Royer, --- U.S. ----, ---- -
----, > 103 S.Ct. 1319, 1330, 75 L.Ed.2d 229 (1983) (BRENNAN, J., concurring
in the result).
"We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the course of investigating
this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others' safety, he is entitled
for the protection of himself and others in the area to conduct a carefully
limited search of *713 the outer clothing of such persons in an attempt
to discover weapons which might be used to assault him." > Id., at
30, 88 S.Ct., at 1884.
In > Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d
612 (1972), the Court relied on Terry to endorse "brief" investigative
stops based on reasonable suspicion. Id., at 145-146, > 92 S.Ct.,
at 1922-1923. In this regard, the Court stated that "[a] brief stop
of a suspicious individual, in order to determine his identity or to maintain
the status quo momentarily while obtaining more information, may be most
reasonable in light of the facts known to the officer at the time."
> Id., at 146, 92 S.Ct., at 1923. The weapons search upheld in Adams
was very limited and was based on Terry 's safety rationale. Ibid.
The Court stated that the purpose of a "limited" weapons
search "is not to **2648 discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence...."
Ibid.
In > United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.
2574, 45 L.Ed.2d 607 (1975), the Court relied on Terry and Adams in holding
that "when an officer's observations lead him reasonably to suspect that
a particular vehicle may contain aliens who are illegally in the country,
he may stop the car briefly and investigate the circumstances that provoke
suspicion." Id., at 881, > 95 S.Ct., at 2580. [FN2] The Court
based this relaxation of the traditional probable cause requirement on
the importance of the governmental interest in stemming the flow of illegal
aliens, on the minimal intrusion of a brief stop, and on the absence of
practical alternatives for policing the border. Ibid. The Court
noted the limited holdings of Terry and Adams and while authorizing the
police to "question the driver and passengers about their citizenship and
immigration status, and ... ask them to explain suspicious circumstances,"
the Court expressly stated that "any further detention or search must be
based on consent or probable cause." Id., at 881-882, > 95 S.Ct.,
at 2580. See also *714 > Ybarra v. Illinois, 444 U.S. 85, 93, 100
S.Ct. 338, 343, 62 L.Ed.2d 238 (1979) ("The Terry case created an exception
to the requirement of probable cause, an exception whose 'narrow scope'
this Court 'has been careful to maintain.' " (footnote
omitted)); > Dunaway v. New York, 442 U.S. 200, 209-212, 99 S.Ct.
2248, 2254- 2256, 60 L.Ed.2d 824 (1979) (discussing the narrow scope of
Terry and its progeny). [FN3]
FN2. The stops " 'usually consume[d] no more than a minute.' " > United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975).
FN3. In > Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Court relied on Terry and its progeny to hold that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id., at 705, > 101 S.Ct., at 2595 (footnotes omitted). The Court also relied on Terry in > Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), to uphold an officer's order to an individual to get out of his car following a lawful stop of the vehicle. Both Summers and Mimms focused on seizures of people.
It is clear that Terry, and the cases that followed it, permit
only brief
investigative stops and extremely limited searches based on reasonable
suspicion. They do not provide the police with a commission to employ
whatever investigative techniques they deem appropriate. As I stated
in > Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983),
"[t]he scope of a Terry-type 'investigative' stop and any attendant search
must be extremely limited or the Terry exception would 'swallow the general
rule that Fourth Amendment seizures [and searches] are 'reasonable' only
if based on probable cause.' " Id., at ----, > 103 S.Ct., at 1330
(BRENNAN, J., concurring in the result), quoting > Dunaway v. New York,
442 U.S., at 213, 99 S.Ct., at 2257.
II
In some respects the Court's opinion in this case can be seen
as the logical successor of the plurality opinion in Florida v. Royer,
supra. The plurality opinion in Royer contained considerable language,
which was unnecessary to the judgment, see > 460 U.S., at ----, 103 S.Ct.,
at 1330 (BRENNAN, J., concurring in the result), regarding the permissible
scope of Terry investigative stops. See id., at ---- - ----, and
n. 10, > 103 S.Ct., at 1324-1325, and n. 10. Even assuming, however,
that the Court finds some support in Royer for its discussion of the scope
of Terry stops, the Court today goes *715 well beyond Royer in endorsing
the notion that the
principles of Terry permit "warrantless seizures of personal luggage
from the custody of the owner on the basis of less than probable cause,
for the purpose of pursuing a limited course of investigation, short of
opening the luggage, that would quickly confirm or dispel the authorities'
suspicion." > Ante, at 2641. See also > ante, at 2644.
In addition to being unnecessary to the Court's judgment, see > supra,
at 2639-2640, this **2649 suggestion finds no support in Terry or its progeny
and significantly dilutes the Fourth Amendment's protections against government
interference with personal property. In short, it represents a radical
departure from settled Fourth Amendment principles.
As noted, > supra, at 2641, Terry and the cases that followed
it authorize a brief "investigative" stop of an individual based on reasonable
suspicion and a limited search for weapons if the officer reasonably suspects
that the individual is armed and presently dangerous. The purpose
of this brief stop is "to determine [the individual's] identity or to maintain
the status quo momentarily while obtaining more information...."
> Adams v. Williams, 407 U.S., at 146, 92 S.Ct., at 1923. Anything
more than a brief stop "must be based on consent or probable cause."
> United States v. Brignoni-Ponce, 422 U.S., at 882, 95 S.Ct., at 2580.
During the course of this stop, "the suspect must not be moved or asked
to move more than a short distance; physical
searches are permitted only to the extent necessary to protect the
police officers involved during the encounter; and, most importantly,
the suspect must be free to leave after a short time and to decline to
answer the questions put to him." Kolender v. Lawson, --- U.S. ----,
----, > 103 S.Ct. 1855, 1861, 75 L.Ed.2d 903 (1983) (BRENNAN, J., concurring).
It is true that Terry stops may involve seizures of personal effects incidental
to the seizure of the person involved. Obviously, an officer cannot
seize a person without also seizing the personal effects that the individual
has in his possession at the time. But there is a difference between
*716 incidental seizures of personal effects and seizures of property independent
of the seizure of the person.
The Fourth Amendment protects "effects" as well as people from
unreasonable searches and seizures. In this regard, Justice STEVENS
pointed out in > Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d
502 (1983), that "[t]he [Fourth] Amendment protects two different interests
of the citizen--the interest in retaining possession of property and the
interest in maintaining personal privacy." > Id., at ----, 103 S.Ct.,
at 1546 (opinion concurring in the judgment). "A seizure threatens
the former, a search the latter." Ibid. Even if an item is not searched,
therefore, its seizure implicates a protected Fourth Amendment interest.
For this reason, seizures of property
must be based on probable cause. See > Colorado v. Bannister,
449 U.S. 1, 3, 101 S.Ct. 42, 43, 66 L.Ed.2d 1 (1980); > Payton v.
New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980);
> G.M. Leasing Corp. v. United States, 429 U.S. 338, 351, 97 S.Ct. 619,
627, 50 L.Ed.2d 530 (1977); > Chambers v. Maroney, 399 U.S. 42, 51-52,
90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); > Warden v. Hayden, 387
U.S. 294, 309-310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967). See
also > Texas v. Brown, 460 U.S., at ----, 103 S.Ct., at 1546 (STEVENS,
J., concurring in the judgment). Neither Terry nor its progeny changed
this rule.
In this case, the officers' seizure of respondent and their later
independent seizure of his luggage implicated separate Fourth Amendment
interests. First, respondent had a protected interest in maintaining
his personal security and privacy. Terry allows this interest to
be overcome, and authorizes a limited intrusion, if the officers have reason
to suspect that criminal activity is afoot. Second, respondent had
a protected interest in retaining possession of his personal effects.
While Terry may authorize seizures of personal effects incident to a lawful
seizure of the person, nothing in the Terry line of cases authorizes the
police to seize personal property, such as luggage, independent of the
seizure of the person. Such seizures significantly expand the scope
of a Terry stop and may not be effected on
less than probable *717 cause. [FN4] Obviously, they also significantly
expand the scope of the intrusion.
FN4. Putting aside the legality of the independent seizure of the luggage, the Court correctly points out that the seizure of luggage "can effectively restrain the person" beyond the initial stop "since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return." > Ante, at 2645 (footnote omitted).
**2650 The officers did not develop probable cause to arrest respondent
during their encounter with him. See > United States v. Place, 660
F.2d, at 50. Therefore, they had to let him go. But despite
the absence of probable cause to arrest respondent, the officers seized
his luggage and deprived him of possession. Respondent, therefore,
was subjected not only to an invasion of his personal security and privacy,
but also to an independent dispossession of his personal effects based
simply on reasonable suspicion. It is difficult to understand how
this intrusion is not more severe than a brief stop for questioning or
even a limited, on-the-spot patdown search for weapons.
In my view, as soon as the officers seized respondent's luggage,
independent of their seizure of him, they exceeded the scope of a permissible
Terry stop
and violated respondent's Fourth Amendment rights. In addition,
the officers' seizure of respondent's luggage violated the established
rule that seizures of personal effects must be based on probable cause.
Their actions, therefore, should not be upheld.
The Court acknowledges that seizures of personal property must
be based on probable cause. See > ante, at 2641. Despite this
recognition, the Court employs a balancing test drawn from Terry to conclude
that personal effects may be seized based on reasonable suspicion.
See > ante, at 2642-2644. [FN5] *718 In > Dunaway v. New York, 442 U.S.
200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the Court stated that "[t]he
narrow intrusions involved in [Terry and its progeny] were judged by a
balancing test rather than by the general principle that Fourth Amendment
seizures must be supported by the 'long- prevailing standards' of probable
cause ... only because these intrusions fell far short of the kind of intrusion
associated with an arrest." Id., at 212, > 99 S.Ct., at 2256.
As Dunaway suggests, the use of a balancing test in this case is inappropriate.
First, the intrusion involved in this case is no longer the "narrow" one
contemplated by the Terry line of cases. See > supra, at 2642.
In addition, the intrusion involved in this case involves not only the
seizure of a person, but also the seizure of property. As noted,
> supra, at 2642, Terry and its progeny did not address seizures of
property. Those cases left unchanged the rule that seizures of
property must be based on probable cause. See > supra, at 2643.
The Terry balancing test should not be wrenched from its factual and conceptual
moorings.
FN5. To the extent that the Court relies on > United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), as support for its conclusion, see > ante, at 2646, n. 6, such reliance is misplaced. As the Court itself points out, the holding in Van Leeuwen was expressly limited to the facts of that case. Ibid. Moreover, the Court of Appeals more than adequately distinguished Van Leeuwen. See > United States v. Place, 660 F.2d 44, 52-53 (CA2 1981). As the court stated: "Unlike the dispossession of hand baggage in a passenger's custody, which constitutes a substantial intrusion, the mere detention of mail not in his custody or control amounts to at most a minimal or technical interference with his person or effects, resulting in no personal deprivation at all." Ibid.
There are important reasons why balancing inquiries should not
be conducted except in the most limited circumstances. Terry and
the cases that followed it established "isolated exceptions to the general
rule that the Fourth
Amendment itself has already performed the constitutional balance between
police objectives and personal privacy." > Michigan v. Summers, 452
U.S. 692, 706, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981) (Stewart, J.,
dissenting). "[T]he protections intended by the Framers could all too easily
disappear in the consideration and balancing of the multifarious circumstances
presented by different cases, especially when that balancing may be done
in the first instance by police officers engaged in the 'often competitive
enterprise of ferreting out crime.' " > Dunaway v. New York, 442
U.S., *719 at 213, 99 **2651 S.Ct., at 2257, quoting > Johnson v. United
States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
The truth of this proposition is apparent when one considers that the Court
today has employed a balancing test "to swallow the general rule that [seizures
of property] are 'reasonable' only if based on probable cause." Ibid.
Justice BLACKMUN's concern over "an emerging tendency on the part of the
Court to convert the Terry decision into a general statement that the Fourth
Amendment requires only that any seizure be reasonable," > ante, at 2652
(BLACKMUN, J., concurring in the judgment) (footnote omitted), is certainly
justified.
III
The Court also suggests today, in a discussion unnecessary to
the judgment, that exposure of respondent's luggage to a narcotics detection
dog "did not
constitute a 'search' within the meaning of the Fourth Amendment."
> Ante, at 2645. In the District Court, respondent did "not contest
the validity of sniff searches per se...." > United States v. Place,
498 F.Supp. 1217, 1228 (EDNY 1980). The Court of Appeals did not
reach or discuss the issue. It was not briefed or argued in this
Court. In short, I agree with Justice BLACKMUN that the Court should
not address the issue. See > ante, at 2653 (BLACKMUN, J., concurring
in the judgment).
I also agree with Justice BLACKMUN's suggestion, > id., at 2653,
that the issue is more complex than the Court's discussion would lead one
to believe. As Justice STEVENS suggested in objecting to "unnecessarily
broad dicta" in > United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081,
75 L.Ed.2d 55 (1983), the use of electronic detection techniques that enhance
human perception implicates "especially sensitive concerns." > Id.,
at ----, 103 S.Ct., at 1089 (opinion concurring in the judgment).
Obviously, a narcotics detection dog is not an electronic detection device.
Unlike the electronic "beeper" in Knotts, however, a dog does more than
merely allow the police to do more efficiently what they could do using
only their own senses. A dog adds a new and previously unobtainable
dimension to human perception. The use of dogs, therefore, represents
a greater intrusion into an individual's *720 privacy. Such use implicates
concerns that are at least as sensitive
as those implicated by the use of certain electronic detection devices.
Cf. > Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d
576 (1967).
I have expressed the view that dog sniffs of people constitute
searches. See > Doe v. Renfrow, 451 U.S. 1022, 1025-1026, 101
S.Ct. 3015, 3017-3018, 69 L.Ed.2d 395 (1981) (BRENNAN, J., dissenting from
denial of certiorari). In Doe, I suggested that sniffs of inanimate
objects might present a different case. > Id., at 1026, n. 4, 101
S.Ct., at 3018, n. 4. In any event, I would leave the determination
of whether dog sniffs of luggage amount to searches, and the subsidiary
question of what standards should govern such intrusions, to a future case
providing an appropriate, and more informed, basis for deciding these questions.
IV
Justice Douglas was the only dissenter in Terry. He stated
that "[t]here have been powerful hydraulic pressures throughout our history
that bear heavily on the Court to water down constitutional guarantees
and give the police the upper hand." > 392 U.S., at 39, 88 S.Ct.,
at 1888 (Douglas, J., dissenting). Today, the Court uses Terry as a justification
for submitting to these pressures. Their strength is apparent, for
even when the Court finds that an individual's Fourth Amendment rights
have been violated it cannot resist the temptation to weaken the protections
the Amendment affords.
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Justice BLACKMUN, with whom Justice MARSHALL joins, concurring
in the judgment.
For me, the Court's analysis in Part III of its opinion is quite
sufficient to support its judgment. I agree that on the facts of
**2652 this case, the detention of Place's luggage amounted to, and was
functionally identical with, a seizure of his person. My concern
with the Court's opinion has to do (a) with its general discussion in Part
II of seizures of luggage under the > Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), exception to the warrant *721 and probable
cause requirements, and (b) with the Court's haste to resolve the dog-sniff
issue.
I
In providing guidance to other courts, we often include in our
opinions material that, technically, constitutes dictum. I cannot
fault the Court's desire to set guidelines for Terry seizures of luggage
based on reasonable suspicion. I am concerned, however, with what
appears to me to be an emerging tendency on the part of the Court to convert
the Terry decision into a general statement that the Fourth Amendment requires
only that any seizure be reasonable. [FN1]
FN1. The Court states that the applicability of the Terry exception
"rests on a balancing of the competing interests to determine the reasonableness
of the type of seizure involved within the meaning of 'the Fourth Amendment's
general proscription against unreasonable searches and seizures.' "
> Ante, at 2642, quoting > Terry, 392 U.S., at 20, 88 S.Ct., at 1879.
As the context of the quotation from Terry makes clear, however, this balancing
to determine reasonableness occurs only under the exceptional circumstances
that justify the Terry exception:
"But we deal here with an entire rubric of police conduct--necessarily
swift action predicated upon the on-the-spot observations of the officer
on the beat--which historically has not been, and as a practical matter
could not be, subjected to the warrant procedure. Instead, the conduct
involved in this case must be tested by the Fourth Amendment's general
proscription against unreasonable searches and seizures." > 392 U.S.,
at 20, 88 S.Ct., at 1879.
I pointed out in dissent in Florida v. Royer, 460 U.S. ----, ----,
> 103 S.Ct. 1319, 1332, 75 L.Ed.2d 229 (1983), that our prior cases suggest
a two- step evaluation of seizures under the Fourth Amendment. The
Amendment generally prohibits a seizure unless it is pursuant to a judicial
warrant
issued upon probable cause and particularly describing the items to
be seized. See > ante, at 2641; > Florida v. Royer, 460 U.S.,
at ----, 103 S.Ct., at 1333 (dissenting opinion). The Court correctly
observes that a warrant may be dispensed with if the officer has probable
cause and if some exception to the warrant requirement, such as exigent
circumstances, *722 is applicable. > Ante, at 2641. While the
Fourth Amendment speaks in terms of freedom from unreasonable seizures,
the Amendment does not leave the reasonableness of most seizures to the
judgment of courts or government officers: the Framers of the Amendment
balanced the interests involved and decided that a seizure is reasonable
only if supported by a judicial warrant based on probable cause. See Texas
v. Brown, --- U.S. ----, ----, > 103 S.Ct. 1535, 1544, 75 L.Ed.2d 502 (1983)
(POWELL, J., concurring); > United States v. Rabinowitz, 339 U.S.
56, 70, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).
Terry v. Ohio, however, teaches that in some circumstances a
limited seizure that is less restrictive than a formal arrest may constitutionally
occur upon mere reasonable suspicion, if "supported by a special law enforcement
need for greater flexibility." > Florida v. Royer, 460 U.S., at ----,
103 S.Ct., at 1333 (dissenting opinion). See > Michigan v. Summers,
452 U.S. 692, 700, 101 S.Ct. 2587, 2592, 69 L.Ed.2d 340 (1981). When
this exception to the Fourth Amendment's warrant and probable cause requirements
is
applicable, a reviewing court must balance the individual's interest
in privacy against the Government's law enforcement interest and determine
whether the seizure was reasonable under the circumstances. > Id.,
at 699-701, 101 S.Ct., at 2593. Only in this limited context is a
court entitled to engage in any balancing of interests in determining the
validity of a seizure.
Because I agree with the Court that there is a significant law
enforcement interest in interdicting illegal drug traffic in the Nation's
airports, > ante, at 2643; see > Florida v. Royer, 460 U.S., at ----,
103 S.Ct., at 1335 (dissenting opinion), a limited **2653 intrusion caused
by a temporary seizure of luggage for investigative purposes could fall
within the Terry exception. The critical threshold issue is the intrusiveness
of the seizure. [FN2] In this *723 case, the seizure went well beyond
a minimal intrusion and therefore cannot fall within the Terry exception.
FN2. I cannot agree with the Court's assertion that the diligence of
the police in acting on their suspicion is relevant to the extent of the
intrusion on Fourth Amendment interests. See > ante, at 2645.
It makes little difference to a traveller whose luggage is seized whether
the police conscientiously followed a lead or bungled the investigation.
The duration and intrusiveness of the seizure is not altered by the diligence
the police
exercise. Of course, diligence may be relevant to a court's determination
of the reasonableness of the seizure once it is determined that the seizure
is sufficiently nonintrusive as to be eligible for the Terry exception.
II
The Court's resolution of the status of dog sniffs under the
Fourth Amendment is troubling for a different reason. The District
Court expressly observed that Place "does not contest the validity of sniff
searches per se." [FN3] > 498 F.Supp. 1217, 1228 (EDNY 1980). While
Place may have possessed such a claim, he chose not to raise it in that
court. The issue also was not presented to or decided by the Court
of Appeals. Moreover, contrary to the Court's apparent intimation,
> ante, at 2644, an answer to the question is not necessary to the decision.
For the purposes of this case, the precise nature of the legitimate investigative
activity is irrelevant. Regardless of the validity of a dog sniff
under the Fourth Amendment, the seizure was too intrusive. The Court
has no need to decide the issue here.
FN3. The District Court did hold that the dog sniff was not conducted
in a fashion that under the circumstances was "reasonably calculated to
achieve a tainted reaction from the dog." > 498 F.Supp., at 1228.
This, however,
is a due process claim, not one under the Fourth Amendment. Place
apparently did not raise this issue before the Court of Appeals.
As a matter of prudence, decision of the issue is also unwise.
While the Court has adopted one plausible analysis of the issue, there
are others. For example, a dog sniff may be a search, but a minimally
intrusive one that could be justified in this situation under Terry upon
mere reasonable suspicion. Neither party has had an opportunity to brief
the issue, and the Court grasps for the appropriate analysis of the problem.
Although it is not essential that the Court ever adopt the views of one
of the parties, it should not decide an issue on which neither party has
expressed any opinion at all. The Court is certainly in no position
to consider all the ramifications *724 of this important issue. Certiorari
is currently pending in two cases that present the issue directly.
United States v. Beale, No. 82-674; Waltzer v. United States, No.
82-5491. There is no reason to avoid a full airing of the issue in
a proper case.
For the foregoing reasons, I concur only in the judgment of the
Court.
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