|Michigan v. Long
413 Mich. 461, 320 N.W.2d 866, reversed and remanded.
[ O'Connor ]
[ Blackmun ]
[ Brennan ]
[ Stevens ]
Michigan v. Long
CERTIORARI TO THE SUPREME COURT OF MICHIGAN
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
The Court today holds that "the protective search of the passenger compartment" of the automobile involved in this case "was reasonable under the principles articulated in Terry and other decisions of this Court." Ante at 1035. I disagree. Terry v. Ohio, 392 U.S. 1 (1968), does not support the Court's conclusion, and the reliance on "other decisions" is patently misplaced. Plainly, the Court is simply continuing the process of distorting Terry beyond recognition and forcing it into service as an unlikely weapon against the Fourth Amendment's fundamental requirement that searches and seizures be based on probable cause. See United State v. Place, 462 U.S. 696, 714-717 (1983) (BRENNAN, J., concurring in result). I, therefore, dissent. [n1] [p1055]
On three occasions this Term, I have discussed the limited scope of the exception to the probable cause requirement created by Terry and its progeny. See Florida v. Royer, 460 U.S. 491, 509-511 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson, 461 U.S. 352, 364-365 (1983) (BRENNAN, J., concurring); United States v. Place, supra, at 711-717 (BRENNAN, J., concurring in result). I will not repeat those discussions here, and note only that "Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion." 462 U.S. at 714. However, the Court's opinion compels a detailed review of Terry itself.
In Terry, the Court confronted 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.
392 U.S. at 15 (emphasis supplied). Because the Court was dealing
with an entire rubric of police conduct . . . which historically [had] not been, and as a practical matter could not be, subjected to the warrant procedure,
id. at 20, the Court tested the conduct at issue "by the Fourth Amendment's general proscription against unreasonable searches and seizures." Ibid. (footnote omitted). In considering the "reasonableness" of the conduct, the Court balanced "‘the need to search [or seize] against the invasion which the search [or seizure] entails.'" Id. at 21, quoting Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). It deserves emphasis that, in discussing the "invasion" at issue, the Court stated that "[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security. . . ." 392 U.S. at 24-25 (emphasis supplied). Ultimately, the Court concluded that
there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable [p1056] cause to arrest the individual for a crime.
Id. at 27 (emphasis supplied). The Court expressed its holding as follows:
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 the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Id. at 30 (emphasis supplied).
It is clear that Terry authorized only limited searches of the person for weapons. In light of what Terry said, relevant portions of which the Court neglects to quote, the Court's suggestion that "Terry need not be read as restricting the preventive search to the person of the detained suspect," ante at 1047 (footnote omitted), can only be described as disingenuous. Nothing in Terry authorized police officers to search a suspect's car based on reasonable suspicion. The Court confirmed this this very Term in United States v. Place, supra, where it described the search authorized by Terry as a "limited search for weapons, or ‘frisk'. . . ." 462 U.S. at 702. The search at issue in this case is a far cry from a "frisk" and certainly was not "limited." [n2] [p1057]
The Court's reliance on Chimel v. California, 395 U.S. 752 (1969), and New York v. Belton, 453 U.S. 454 (1981), as support for its new "area search" rule within the context of a Terry stop is misplaced. In Chimel, the Court addressed the scope of a search incident to a lawful arrest, 395 U.S. at 753, and held invalid the search at issue there because it
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.
Id. at 768. Chimel stressed the need to limit the scope of searches incident to arrest and overruled two prior decisions of this Court validating overly broad searches. Ibid.
In Belton, the Court considered the scope of a search incident to the lawful custodial arrest of an occupant of an automobile. 453 U.S. at 455. In this "particular and problematic context," id. at 460, n. 3, the Court held that
when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
Id. at 460 (footnote omitted). [n3]
The critical distinction between this case and Terry on the one hand, and Chimel and Belton, on the other, is that the latter two cases arose within the context of lawful custodial arrests supported by probable cause. [n4] The Court in Terry expressly recognized the difference between a search incident to arrest and the "limited search for weapons," 392 U.S. at 25, involved in that case. The Court stated: [p1058]
A search [incident to arrest], 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 initiation. . . . 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, even though it remains a serious intrusion.
. . . An 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. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.
Id. at 25-26 (footnote omitted).
In United States v. Robinson, 414 U.S. 218 (1973), the Court relied on the differences between searches incident to lawful custodial arrests and Terry "stop-and-frisk" searches to reject an argument that the limitations established in Terry should be applied to a search incident to arrest. 414 U.S. at 228. The Court noted that "Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other," id. at 233, and described Terry as involving "stricter . . . standards," 414 U.S. at 234, than those governing searches incident to arrest. The Court went on to state: [p1059]
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment.
Id. at 235. See also id. at 237-238 (POWELL, J., concurring) ("The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest" (footnote omitted)); Gustafson v. Florida, 414 U.S. 260, 264 (1973).
As these cases recognize, there is a vital difference between searches incident to lawful custodial arrests and Terry protective searches. The Court deliberately ignores that difference in relying on principles developed within the context of intrusions supported by probable cause to arrest to construct an "area search" rule within the context of a Terry stop.
The Court denies that an "area search" is fundamentally inconsistent with Terry, see ante at 1052, n. 16, stating:
We have recognized that Terry searches are limited insofar as they may not be conducted in the absence of an articulable suspicion that the intrusion is justified, see e.g., Sibron v. New York, 392 U.S. 40, 65 (1968), and that they are protective in nature and limited to weapons, see Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). However, neither of these concerns is violated by our decision. To engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous.
Ibid. [p1060] This patently is no answer: respondent's argument relates to the scope of the search, not to the standard that justifies it. The Court flouts Terry's holding that Terry searches must be carefully limited in scope. See supra at 1056. Indeed, the page in Sibron v. New York, 392 U.S. 40 (1968), cited by the Court states:
Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception -- the protection of the officer by disarming a potentially dangerous man.
Id. at 65 (emphasis supplied). [n5]
As this passage makes clear, the scope of a search is determined not only by reference to its purpose, but also by reference to its intrusiveness. Yet the Court today holds that a search of a car (and the containers within it) that is not even occupied by the suspect is only as intrusive as, or perhaps less intrusive than, thrusting a hand into a pocket after an [p1061] initial patdown has suggested the presence of concealed objects that might be used as weapons.
The Court suggests no limit on the "area search" it now authorizes. The Court states that a
search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
Ante at 1049 (footnote omitted). Presumably a weapon "may be placed or hidden" anywhere in a car. A weapon also might be hidden in a container in the car. In this case, the Court upholds the officer's search of a leather pouch because it "could have contained a weapon." Ante at 1050-1051 (footnote omitted). In addition, the Court's requirement that an officer have a reasonable suspicion that a suspect is armed and dangerous does little to check the initiation of an area search. In this case, the officers saw a hunting knife in the car, see ante at 1036, 1050, but the Court does not base its holding that the subsequent search was permissible on the ground that possession of the knife may have been illegal under state law. See ante at 1052-1053, n. 16. An individual can lawfully possess many things that can be used as weapons. A hammer, or a baseball bat, can be used as a very effective weapon. Finally, the Court relies on the following facts to conclude that the officers had a reasonable suspicion that respondent was presently dangerous: the hour was late; the area was rural; respondent had been driving at an excessive speed; he had been involved in an accident; he was not immediately responsive to the officers' questions; and he appeared to be under the influence of some intoxicant. Ante at 1050. Based on these facts, one might reasonably conclude that respondent was drunk. A drunken driver is indeed dangerous while driving, but not while stopped on the roadside by [p1062] the police. Even when an intoxicated person lawfully has in his car an object that could be used as a weapon, it requires imagination to conclude that he is presently dangerous. Even assuming that the facts in this case justified the officers' initial "frisk" of respondent, see ante at 1035-1036, 1050-1051, and n. 15, they hardly provide adequate justification for a search of a suspect's car and the containers within it. This represents an intrusion not just different in degree, but in kind, from the intrusion sanctioned by Terry. In short, the implications of the Court's decision are frightening.
The Court also rejects the Michigan Supreme Court's view that it
was not reasonable for the officers to fear that [respondent] could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile.
Ante at 1051. In this regard, the Court states:
[W]e stress that a Terry investigation, such as the one that occurred here, involves a police investigation "at close range," . . . when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a "quick decision as to how to protect himself and others from possible danger." . . . In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.
Ante at 1052 (footnote omitted; emphasis in original). Putting aside the fact that the search at issue here involved a far more serious intrusion than that "involved in a Terry encounter," see ibid., and as such might suggest the need for resort to "alternative means," the Court's reasoning is perverse. The Court's argument in essence is that the absence of probable cause to arrest compels the conclusion that a broad search, traditionally associated in scope with a search incident to arrest, must be permitted based on reasonable suspicion. But United State v. Robinson stated:
It is [p1063] scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.
414 U.S. at 234-235. In light of Robinson's observation, today's holding leaves in grave doubt the question of whether the Court's assessment of the relative dangers posed by given confrontations is based on any principled standard.
Moreover, the Court's reliance on a "balancing" of the relevant interests to justify its decision, see ante at 1051, is certainly inappropriate. In Dunaway v. New York, 442 U.S. 200 (1979), the Court stated that
[t]he narrow intrusions involved in [Terryy 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. The intrusion involved in this case is precisely "the kind of intrusion associated with an arrest." There is no justification, therefore, for "balancing" the relevant interests.
In sum, today's decision reflects once again the threat to Fourth Amendment values posed by "balancing." See United States v. Place, 462 U.S. at 717-719 (BRENNAN, J., concurring in result). As Justice Frankfurter stated in United States v. Rabinowitz, 339 U.S. 56 (1950):
To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an "unreasonable search" is forbidden -- that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response.
Id. at 83 (dissenting opinion). [p1064] Hornbook law has been that "the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so." New York v. Belton, 453 U.S. at 457. While, under some circumstances, the police may search a car without a warrant, see, e.g., Carroll v. United States, 267 U.S. 132 (1925), "the exception to the warrant requirement established in Carroll . . . applies only to searches of vehicles that are supported by probable cause." United States v. Ross, 456 U.S. 798, 809 (1982) (footnote omitted).
[T]he Court in Carroll emphasized the importance of the requirement that officers have probable cause to believe that the vehicle contains contraband.
Id. at 807-808. See also Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973) ("Automobile or no automobile, there must be probable cause for the search" (footnote omitted)). Today the Court discards these basic principles and employs the very narrow exception established by Terry "to swallow the general rule that Fourth Amendment [searches of cars] are ‘reasonable' only if based on probable cause." [n6] Dunaway v. New York, supra, at 213. See also United States v. Place, supra, at 718-719 (BRENNAN, J., concurring in result).
Today's decision disregards the Court's warning in Almeida-Sanchez:
The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.
413 U.S. at 273. Of course, police should not be exposed to unnecessary danger in the performance of their duties. But a search of a car and the containers within it based on nothing more than reasonable suspicion, even under the circumstances present [p1065] here, cannot be sustained without doing violence to the requirements of the Fourth Amendment. There is no reason in this case why the officers could not have pursued less intrusive, but equally effective, means of insuring their safety. [n7] Cf. United States v. Place, supra, at 715-716; Florida v. Royer, 460 U.S. at 511, n. (BRENNAN, J., concurring in result). The Court takes a long step today toward "balancing" into oblivion the protections the Fourth Amendment affords. I dissent, for as Justice Jackson said in Brinegar v. United States, 338 U.S. 160 (1949):
[Fourth Amendment rights] are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.
Id. at 180 (dissenting opinion).
1. I agree that the Court has jurisdiction to decide this case. See ante at 1044-1045, n. 10.
2. Neither Pennsylvania v. Mimms, 434 U.S. 106 (1977), nor Adams v. Williams, 407 U.S. 143 (1972), provides any support for the Court's conclusion in this case. The Terry searches in Mimms and Adams were both limited, and involved only searches of the person. See 434 U.S. at 111-112; 407 U.S. at 146, 148.
3. The court went on to state that
the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.
453 U.S. 460 (footnote omitted).
4. There was no arrest before the search in this case, see ante at 463 U.S. 1035"]1035, n. 1, and the Court does not address whether the police may conduct a search as broad as those authorized by Belton and 1035, n. 1, and the Court does not address whether the police may conduct a search as broad as those authorized by Belton and United States v. Ross, 456 U.S. 798 (1982), if they have probable cause to arrest, but do not actually effect the arrest. See ante at 1035, n. 1.
5. See also Ybarra v. Illinois, 444 U.S. 85, 93 (1979) ("Under [Terry], a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted" (emphasis supplied)).
6. Of course, the Court's decision also swallows the general rule that searches of containers must be based on probable cause. Without probable cause to search the car, United States v. Ross does not apply. See 456 U.S. at 825. Moreover, in the absence of a lawful custodial arrest, see n. 4, supra, New York v. Belton does not apply. See 453 U.S. at 460; supra at 1057-1058.
7. The police, for example, could have continued to detain respondent outside the car and asked him to tell them where his registration was. The police then could have retrieved the registration themselves. This would have resulted in an intrusion substantially less severe than the one at issue here.