us/499/621.html
CALIFORNIA
v.
HODARI D
499 U.S. 621 (1991)
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT
No. 89-1632
Argued January 14, 1991
Decided April 23, 1991
A
group of youths, including respondent Hodari D., fled at the approach of an
unmarked police car on an Oakland, California, street. Officer Pertoso, who was
wearing a jacket with "Police" embossed on its front, left the car to
give chase. Pertoso did not follow Hodari directly, but took a circuitous route
that brought the two face to face on a parallel street. Hodari, however, was
looking behind as he ran and did not turn to see Pertoso until the officer was almost
upon him, whereupon Hodari tossed away a small rock. Pertoso tackled him, and
the police recovered the rock, which proved to be crack cocaine. In the
juvenile proceeding against Hodari, the court denied his motion to suppress the
evidence relating to the cocaine. The State Court of Appeal reversed, holding
that Hodari had been "seized" when he saw Pertoso running towards
him; that this seizure was "unreasonable" under the Fourth Amendment,
the State having conceded that Pertoso did not have the "reasonable
suspicion" required to justify stopping Hodari; and therefore that the
evidence of cocaine had to be suppressed as the fruit of the illegal seizure.
Held:
The
only issue presented here - whether, at the time he dropped the drugs, Hodari
had been "seized" within the meaning of the Fourth Amendment - must
be answered in the negative. To answer this question, this Court looks to the
common law of arrest. To constitute a seizure of the person, just as to
constitute an arrest - the quintessential "seizure of the person"
under Fourth Amendment jurisprudence - there must be either the application of
physical force, however slight, or, where that is absent, submission to an
officer's "show of authority" to restrain the subject's liberty. No
physical force was applied in this case, since Hodari was untouched by Pertoso
before he dropped the drugs. Moreover, assuming that Pertoso's pursuit
constituted a "show of authority" enjoining Hodari to halt, Hodari
did not comply with that injunction, and therefore was not seized until he was
tackled. Thus, the cocaine abandoned while he was running was not the fruit of
a seizure, cf. Brower v. Inyo County, 489 U.S. 593, 597; Nester v. United
States, 265 U.S. 57, 58, and his motion to exclude evidence of it was properly denied.
United States v. Mendenhall, 446 U.S. 544, 554 (opinion of Stewart, J.), and
its progeny, distinguished. Pp. 623-629.
Reversed
and remanded. [499 U.S. 621, 622]
SCALIA,
J., delivered the opinion of the Court, in which REHNQUIST, C.J., joined and WHITE,
BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which MARSHALL, J., joined, post, p. 629.
Ronald
E. Niver, Deputy Attorney General of California, argued the cause for
petitioner. With him on the briefs were John K. Van de Kamp, Attorney General,
Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Senior
Assistant Attorney General, and Clifford K. Thompson, Jr., and Morris Beatus,
Deputy Attorneys General.
Clifford
M. Sloan argued the cause for the United States as amicus curiae urging
reversal. On the brief were Solicitor General Starr, Assistant Attorney General
Mueller, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr.
James
L. Lozenski, by appointment of the Court, 498 U.S. 935, argued the cause for
respondent. With him on the brief was J. Bradley O'Connell.*
[Footnote
*] Briefs of amici curiae urging reversal were filed for the Criminal Justice
Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the
Wayne County Prosecuting Attorney by John D. O'Hair, pro se, and Timothy A.
Baughman.
Briefs
of amici curiae urging affirmance were filed for the California Attorneys for
Criminal Justice by Paul L. Gabbert; and for the National Association of
Criminal Defense Lawyers by Paul Morris.
Briefs
of amici curiae were filed for the Appellate Committee of the California
District Attorneys Association by Ira Reiner and Harry B. Sondheim; and for
Marvin Cahn, pro se.
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. As they rounded the corner, they saw four or five youths
huddled around a small red car parked at the curb. When the youths [499 U.S.
621, 623] saw the officers' car approaching, they apparently panicked, and took
flight. The respondent here, Hodari D., and one companion ran west through an
alley; the others fled south. The red car also headed south, at a high rate of
speed.
The
officers were suspicious, and gave chase. McColgin remained in the car and
continued south on 63rd Avenue; Pertoso left the car, ran back north along
63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari,
meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he
ran, he did not turn and 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 suppressed as the fruit of that illegal seizure. The
California Supreme Court denied the State's application for review. We granted
certiorari. 498 U.S. 807 (1990).
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.1 If [499 U.S. 621, 624] 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. Cf. Rios v. United States, 364 U.S. 253 (1960).)
We
have long understood that the Fourth Amendment's protection against
"unreasonable . . . seizures" includes seizure of the person, see
Henry v. United States, 361 U.S. 98, 100 (1959). From the time of the founding
to the present, the word "seizure" has meant a "taking
possession," 2 N. Webster, An American Dictionary of the English Language
67 (1828); 2 J. Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster's Third
New International Dictionary 2057 (1981). 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. A ship still fleeing, even though under attack, would not be
considered to have been seized as a war prize. Cf. The Josefa Segunda, 10
Wheat. 312, 325-326 (1825). A res capable of manual delivery was not seized
until "tak[en] into custody." Pelham v. Rose, 9 Wall. 103, 106
(1870). 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. See, e. g., Whitehead v.
Keyes, 85 Mass. 495, 501 (1862) ("[A]n officer effects an arrest of a
person whom he has authority to arrest, by laying his hand on him for the
purpose of arresting him, though he may not succeed in stopping and holding
him"); 1 [499 U.S. 621, 625] Restatement of Torts 41, Comment h (1934). As
one commentator has described it:
"There can be constructive detention, which will
constitute an arrest, although the party is never actually brought within the
physical control of the party making an arrest. This is accomplished by merely
touching, however slightly, the body of the accused, by the party making the
arrest and for that purpose, although he does not succeed in stopping or
holding him even for an instant; as where the bailiff had tried to arrest one
who fought him off by the fork, the court said, `If the bailiff had touched
him, that had been an arrest. . . .'" A. Cornelius, Search and Seizure
163-164 (2d ed. 1930) (footnote omitted).
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. Cf.
Thompson v. Whitman, 18 Wall. 457, 471 (1874) ("A seizure is a single act,
and not a continuous fact"). 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, 392 U.S. 1,
19, n. 1 (1968) (emphasis added). Hodari contends (and we accept as true for
purposes of this decision) that Pertoso's pursuit qualified as a "show of
authority" [499 U.S. 621, 626] 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.2 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.
"Mere words will not constitute an arrest, while,
on the other hand, no actual, physical touching is essential. The apparent
inconsistency in the two parts of this statement is explained by the fact that
an assertion of authority and purpose to arrest, followed by submission of the
arrestee, constitutes an arrest. There can be no arrest [499 U.S. 621, 627]
without either touching or submission." Perkins, The Law of Arrest, 25
Iowa L.Rev. 201, 206 (1940) (footnotes omitted).
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.3 Street pursuits always place the public at some risk, and compliance
with police orders to stop should therefore be encouraged. Only a few of those
orders, we must presume, will be without adequate basis, and since the
addressee has no ready means of identifying the deficient ones, it almost
invariably is the responsible course to comply. Unlawful orders will not be
deterred, moreover, by sanctioning through the exclusionary rule those of them
that are not obeyed. Since policemen do not command "Stop!" expecting
to be ignored, or give chase hoping to be outrun, it fully suffices to apply
the deterrent to their genuine, successful seizures.
Respondent
contends that his position is sustained by the so-called Mendenhall test,
formulated by Justice Stewart's opinion in United States v. Mendenhall, 446
U.S. 544, 554 (1980), and adopted by the Court in later cases, see Michigan v.
Chesternut, 486 U.S. 567, 573 (1988); INS v. Delgado, 466 U.S. 210, 215 (1984):
"[A] person has been `seized' within the [499 U.S. 621, 628] meaning of
the Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave." 446 U.S., at 554. See also Florida v. Royer, 460 U.S. 491, 502
(1983) (opinion of WHITE, J.). 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 officer's words and actions would have conveyed that
to a reasonable person. Application of this objective test was the basis for
our decision in the other case principally relied upon by respondent,
Chesternut, supra, where we concluded that the police cruiser's slow following
of the defendant did not convey the message that he was not free to disregard
the police and go about his business. We did not address in Chesternut,
however, the question whether, if the Mendenhall test was met - if the message
that the defendant was not free to leave had been conveyed - a Fourth Amendment
seizure would have occurred. See 486 U.S., at 577 (KENNEDY, J., concurring).
Quite
relevant to the present case, however, was our decision in Brower v. Inyo
County, 489 U.S. 593, 596 (1989). In that case, police cars with flashing
lights had chased the decedent for 20 miles - surely an adequate "show of
authority" - but he did not stop until his fatal crash into a
police-erected blockade. The issue was whether his death could be held to be
the consequence of an unreasonable seizure in violation of the Fourth
Amendment. We did not even consider the possibility that a seizure could have
occurred during the course of the chase because, as we explained, that
"show of authority" did not produce his stop. Id., at 597. And we
discussed [499 U.S. 621, 629] ibid., an opinion of Justice Holmes, involving a
situation not much different from the present case, where revenue agents had
picked up containers dropped by moonshiners whom they were pursuing without
adequate warrant. The containers were not excluded as the product of an
unlawful seizure because "[t]he defendant's own acts, and those of his
associates, disclosed the jug, the jar and the bottle - and there was no
seizure in the sense of the law when the officers examined the contents of each
after they had been abandoned." Nester v. United States, 265 U.S. 57, 58
(1924). The same is true here.
In
sum, assuming that Pertoso's pursuit in the present case constituted a
"show of authority" enjoining 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.
It
is so ordered
Footnotes
[Footnote
1] California conceded below that Officer Pertoso did not have the
"reasonable suspicion" required to justify stopping Hodari, see Terry
v. Ohio, 392 U.S. 1 (1968). That it would be unreasonable to stop, for brief
inquiry, young men who scatter in panic upon the mere sighting of the police is
not self-evident, and arguably contradicts proverbial common sense. See
Proverbs 28:1 ("The wicked flee when no man pursueth"). We do not
decide that point here, but rely entirely upon the State's concession.
[Footnote
2] For this simple reason - which involves neither "logic-chopping,"
post at 646, nor any arcane knowledge of legal history - it is irrelevant that
English law proscribed "an unlawful attempt to take a presumptively
innocent person into custody." Post, at 631. We have consulted the common
law to explain the meaning of seizure - and, contrary to the dissent's
portrayal, to expand, rather than contract, that meaning (since one would not
normally think that the mere touching of a person would suffice). But neither
usage nor common law tradition makes an attempted seizure a seizure. The common
law may have made an attempted seizure unlawful in certain circumstances; but
it made many things unlawful, very few of which were elevated to constitutional
proscriptions.
[Footnote
3] Nor have we ever done so. The dissent is wrong in saying that Terry v. Ohio,
392 U.S. 1 (1968) "broadened the range of encounters . . . encompassed
within the term `seizure,'" post, at 635. Terry unquestionably involved
conduct that would constitute a common-law seizure; its novelty (if any) was in
expanding the acceptable justification for such a seizure beyond probable
cause. The dissent is correct that Katz v. United States, 389 U.S. 347 (1967)
"unequivocally reject[s] the notion that the common law of arrest defines
the limits of the term `seizure' in the Fourth Amendment," post, at 637.
But we do not assert that it defines the limits of the term
"seizure"; only that it defines the limits of a seizure of the
person. What Katz stands for is the proposition that items which could not be
subject to seizure at common law (e. g., telephone conversations) can be seized
under the Fourth Amendment. That is quite different from saying that what constitutes
an arrest (a seizure of the person) has changed.
JUSTICE
STEVENS, with whom JUSTICE MARSHALL joins, dissenting.
The
Court's narrow construction of the word "seizure" represents a
significant, and in my view, unfortunate, departure from prior case law
construing the Fourth Amendment.1 Almost a quarter of a century ago, in two
landmark cases - one broadening the protection of individual privacy,2 and the
other broadening the powers of law enforcement officers3 - we rejected the
method of Fourth Amendment analysis that [499 U.S. 621, 630] today's majority
endorses. In particular, the 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. 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,4 the officer did not have
a lawful basis for either stopping or arresting respondent. See App. 138-140; ante
at 623, n. 1. Second, the officer's chase amounted to a "show of
force" as soon as respondent saw the officer nearly upon him. See ante, at
625-626, 629. Third, the act of discarding the rock of cocaine was the direct
consequence of the show of force. See Pet. for Cert. 48-49, 52. Fourth, as the
Court correctly demonstrates, no common law arrest occurred until the officer
tackled respondent. See ante, at 624-625. Thus, the Court is quite right in
concluding 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 - [499 U.S. 621, 631] even if he did not
subdue him - an arrest would have occurred.5 See ante, at 624-625, 626. In that
event (assuming the touching precipitated the abandonment), the evidence would
have been the fruit of an unlawful 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.6 Although the distinction between assault and battery
was important for pleading purposes, see 2 J. Chitty, Pleading *372-*376, 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 distinction between battery and
assault was critical to a correct understanding of the common law of arrest.
See ante, at 626 ("An arrest requires either physical force . . . or, where
that is absent, submission to the assertion of authority"). 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 [499 U.S.
621, 632] attempt was unlawful at common law.7 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
first question, then, is whether the common law should define the scope of the
outer boundaries of the constitutional protection against unreasonable
seizures. Even if, contrary to settled precedent, traditional common law
analysis were controlling, it would still be necessary to decide whether the
unlawful attempt to make an arrest should be considered a seizure within the
meaning of the Fourth Amendment, and whether the exclusionary rule should apply
to unlawful attempts.
I
The
Court today takes a narrow view of "seizure," which is at odds with
the broader view adopted by this Court almost 25 years ago. In Katz v. United
States, 389 U.S. 347 (1967), the Court considered whether electronic
surveillance conducted "without any trespass and without the seizure of
any material object fell outside the ambit of the Constitution." Id., at
353. Over Justice Black's powerful dissent, we rejected that "narrow
view" of the Fourth Amendment, and held that electronic eavesdropping is a
"search and seizure" within the meaning of the Amendment. Id., at
353-354. We thus endorsed the position expounded by two of the dissenting
Justices in Olmstead v. United States, 277 U.S. 438 (1928): [499 U.S. 621, 633]
"Time and again, this Court, in giving effect to
the principle underlying the Fourth Amendment, has refused to place an unduly
literal construction upon it." Id., at 476 (Brandeis, J., dissenting).
"The direct operation or literal meaning of the
words used do not measure the purpose or scope of its provisions. Under the
principles established and applied by this Court, the Fourth Amendment
safeguards against all evils that are like and equivalent to those embraced
within the ordinary meaning of its words." Id., at 488 (Butler, J.,
dissenting).
Writing
for the Court in Katz, JUSTICE Stewart explained:
"Thus, although a closely divided Court supposed
in Olmstead that surveillance without any trespass and without the seizure of
any material object fell outside the ambit of the Constitution, we have since
departed from the narrow view on which that decision rested. Indeed, we have
expressly held that the Fourth Amendment governs not only the seizure of
tangible items, but extends as well to the recording of oral statements,
overheard without any `technical trespass under . . . local property law.'
Silverman v. United States, 365 U.S. 505, 511. Once this much is acknowledged,
and once it is recognized that the Fourth Amendment protects people - and not
simply `areas' - against unreasonable searches and seizures, it becomes clear
that the reach of that Amendment cannot turn upon the presence or absence of a
physical intrusion into any given enclosure.
We conclude that the underpinnings of Olmstead and
Goldman have been so eroded by our subsequent decisions that the `trespass'
doctrine there enunciated can no longer be regarded as controlling. The
Government's activities in electronically listening to and recording the
petitioner's words violated the privacy upon which he justifiably relied while
using the telephone [499 U.S. 621, 634] booth, and thus constituted a `search
and seizure' within the meaning of the Fourth Amendment. The fact that the
electronic device employed to achieve that end did not happen to penetrate the
wall of the booth can have no constitutional significance.
"The question remaining for decision, then, is
whether the search and seizure conducted in this case complied with
constitutional standards." 389 U.S., at 353-354.
Significantly,
in the Katz opinion, the Court repeatedly used the word "seizure" to
describe the process of recording sounds that could not possibly have been the
subject of a common law seizure. See id., at 356, 357
Justice
Black's reasoning, which was rejected by the Court in 1967, is remarkably
similar to the reasoning adopted by the Court today. After criticizing
"language-stretching judges," id., at 366, Justice Black wrote:
"I do not deny that common sense requires and
that this Court often has said that the Bill of Rights' safeguards should be
given a liberal construction. This principle, however, does not justify
construing the search and seizure amendment as applying to eavesdropping or the
"seizure" of conversations." Id., at 366-367.
"Since I see no way in which the words of the
Fourth Amendment can be construed to apply to eavesdropping, that closes the
matter for me. In interpreting the Bill of Rights, I willingly go as far as a
liberal construction of the language takes me, but I simply cannot in good
conscience give a meaning to words which they have never before been thought to
have and which they certainly do not have in common ordinary usage. I will not
distort the words of the Amendment in order to "keep the Constitution up
to date" or "to bring it into harmony with the times." It was
never meant that this Court have such power, which in effect would make us a
continuously functioning constitutional convention." Id., at 373. [499
U.S. 621, 635]
The
expansive construction of the word "seizure" in the Katz case provided
an appropriate predicate for the Court's holding in Terry v. Ohio, 392 U.S. 1
(1968), the following year.8 Prior to Terry, the Fourth Amendment proscribed
any seizure of the person that was not supported by the same probable cause
showing that would justify a custodial arrest.9 See Dunaway v. New York, 442
U.S. 200, 207-209 (1979). Given the fact that street encounters between
citizens and police officers "are incredibly rich in diversity,"
Terry, 392 U.S., at 13, the Court recognized the need for flexibility, and held
that "reasonable" suspicion - a quantum of proof less demanding than
probable cause - was adequate to justify a stop for investigatory purposes.
Id., at 21-22. As a corollary to the lesser justification for the stop, the Court
necessarily concluded that the word "seizure" in the Fourth Amendment
encompasses official restraints on individual freedom that fall short of a
common law arrest. Thus, Terry broadened the range of encounters between the
police and the citizen encompassed within the term "seizure," while
at the same time, lowering the standard of proof necessary to justify a
"stop" in the newly expanded category of seizures [499 U.S. 621, 636]
now covered by the Fourth Amendment.10 The Court explained:
"Our first task is to establish at what point in
this encounter the Fourth Amendment becomes relevant. That is, we must decide
whether and when Officer McFadden `seized' Terry and whether and when he
conducted a "search." There is some suggestion in the use of such
terms as `stop' and `frisk' that such police conduct is outside the purview of
the Fourth Amendment because neither action rises to the level of a `search' or
`seizure' within the meaning of the Constitution. We emphatically reject this
notion. It is quite plain that the Fourth Amendment governs `seizures' of the
person which do not eventuate in a trip to the station house and prosecution
for crime - `arrests' in traditional terminology. It must be recognized that,
whenever a police officer accosts an individual and restrains his freedom to
walk away, he has `seized' that person." Id., at 16 (footnote omitted).
"The distinctions of classical `stop-and-frisk'
theory thus serve to divert attention from the central inquiry under the Fourth
Amendment - the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security. `Search' and `seizure'
are not talismans. 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.' Id., at 19. [499 U.S. 621, 637]
The
decisions in Katz and Terry unequivocally reject the notion that the common law
of arrest defines the limits of the term "seizure" in the Fourth
Amendment. In Katz, the Court abandoned the narrow view that would have limited
a seizure to a material object, and instead, held that the Fourth Amendment
extended to the recording of oral statements. And in Terry, the Court abandoned
its traditional view that a seizure under the Fourth Amendment required
probable cause, and instead, expanded the definition of a seizure to include an
investigative stop made on less than probable cause. Thus, the major premise
underpinning the majority's entire analysis today - that the common law of
arrest should define the term "seizure" for Fourth Amendment
purposes, see ante, at 624-625 - is seriously flawed. The Court mistakenly
hearkens back to common law, while ignoring the expansive approach that the
Court has taken in Fourth Amendment analysis since Katz and Terry.11
II
The
Court fares no better when it tries to explain why the proper definition of the
term "seizure" has been an open question until today. In Terry, in
addition to stating that a seizure occurs "whenever a police officer
accosts an individual and restrains his freedom to walk away," 392 U.S.,
at 16, the Court noted 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. . . ." Id., at 19, n. 16. The touchstone of a seizure is the
restraint of an individual's personal liberty "in some way." Ibid.
(emphasis added).12 Today the Court's reaction to respondent's reliance on
Terry [499 U.S. 621, 638] is to demonstrate that, in "show of force"
cases, no common law arrest occurs unless the arrestee submits. See ante, at
626-627. That answer, however, is plainly insufficient, given the holding in
Terry that the Fourth Amendment applies to stops that need not be justified by
probable cause in the absence of a full-blown arrest.
In
United States v. Mendenhall, 446 U.S. 544 (1980), the Court "adhere[d] to
the view that a person is "seized" only when, by means of physical
force or a show of authority, his freedom of movement is restrained." Id.,
at 553. The Court looked to whether the citizen who is questioned "remains
free to disregard the questions and walk away," and, if she is able to do
so, then "there has been no intrusion upon that person's liberty or
privacy" that would require some "particularized and objective
justification" under the Constitution. Id., at 554. The test for a
"seizure," as formulated by the Court in Mendenhall, was whether,
"in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave."
Ibid. Examples of seizures include the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled. Ibid. The Court's
unwillingness today to adhere to the "reasonable person" standard, as
formulated by Justice Stewart in Mendenhall, marks an unnecessary departure
from Fourth Amendment case law.
The
Court today draws the novel conclusion that even though no seizure can occur
unless the Mendenhall reasonable person standard is met, see ante, at 628, the
fact that the standard has been met does not necessarily mean that a seizure
has occurred. See ibid. (Mendenhall "states a necessary, but not a
sufficient, condition for seizure . . . effected [499 U.S. 621, 639] through a
`show of authority'"). If it were true that a seizure requires more than
whether a reasonable person felt free to leave, then the following passage from
the Court's opinion in INS v. Delgado, 466 U.S. 210 (1984), is at best,
seriously misleading:
"As we have noted elsewhere: `Obviously, not all
personal intercourse between policemen and citizens involves
"seizures" of persons. Only when the officer, by means of physical
force or show of authority, has restrained the liberty of a citizen may we
conclude that a "seizure" has occurred.' Terry v. Ohio, supra, at 19,
n. 16. While applying such a test is relatively straightforward in a situation
resembling a traditional arrest, see Dunaway v. New York, 442 U.S. 200, 212-216
(1979), the protection against unreasonable seizures also extends to `seizures
that involve only a brief detention short of traditional arrest.' United States
v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). What has evolved from our cases is
a determination that an initially consensual encounter between a police officer
and a citizen can be transformed into a seizure or detention within the meaning
of the Fourth Amendment, "if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that he was not free to
leave." Mendenhall, supra, at 554 (footnote omitted); see Florida v.
Royer, 460 U.S. 491, 502 (1983) (plurality opinion). Id., at 215.
More
importantly, in Florida v. Royer, 460 U.S. 491 (1983), a plurality of the Court
adopted Justice Stewart's formulation in Mendenhall as the appropriate standard
for determining when police questioning crosses the threshold from a consensual
encounter to a forcible stop. In Royer, the Court held that an illegal seizure
had occurred. As a [[499 U.S. 621, 640] predicate for that holding, JUSTICE
WHITE, in his opinion for the plurality, explained that the citizen "may
not be detained even momentarily without reasonable, objective grounds for
doing so; and his refusal to listen or answer does not, without more, furnish
those grounds. United States v. Mendenhall, supra, at 556 (opinion of Stewart,
J.)." 460 U.S., at 498 (emphasis added). The rule looks, not to the
subjective perceptions of the person questioned, but rather, to the objective
characteristics of the encounter that may suggest whether a reasonable person
would have felt free to leave.
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. That the Court understood the Mendenhall definition as both
necessary and sufficient to describe a Fourth Amendment seizure is evident from
this passage in our opinion in United States v. Jacobsen, 466 U.S. 109 (1984):
A "seizure" of property occurs
when there is some meaningful interference with an individual's possessory
interests in that property.5.
5.
See United States v. Place, 462 U.S. 696 (1983); id., at 716 (BRENNAN, J.,
concurring in result); Texas v. Brown, 460 U.S. 730, 747-748 (1983) (STEVENS,
J., concurring in judgment); see also United States v. Chadwick, 433 U.S. 1,
13-14, n. 8 (1977); Hale v. Henkel, 201 U.S. 43, 76 (1906). While the concept
of a "seizure" of property is not much discussed in our cases, this
definition follows from our oft-repeated definition of the "seizure"
of a person within the meaning of the Fourth Amendment - meaningful
interference, however brief, with an individual's freedom of movement. See
Michigan v. Summers, 452 U.S. 692, 696 (1981); Reid v. Georgia, 488 U.S. 438,
[448 U.S. 438] 440, n. (1980) (per curiam); United States v. Mendenhall, 446
U.S. 544, 551-554 (1980) (opinion of Stewart, J.); Brown v. Texas, 443 U.S. 47,
50 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Cupp v.
Murphy, 412 U.S. 291, 294-295 (1973); Davis v. Mississippi, [499 U.S. 621, 641]
394 U.S. 721, 726-727 (1969); Terry v. Ohio, 392 U.S., at 16, 19, n. 16. Id.,
at 113, and n. 5.
Finally,
it is noteworthy that, in Michigan v. Chesternut, 486 U.S. 567 (1988), the
State asked us to repudiate the reasonable person standard developed in Terry,
Mendenhall, Delgado, and Royer.13 We decided, however, to "adhere to our
traditional contextual approach," 486 U.S., at 573. In our opinion, we described
Justice Stewart's analysis in Mendenhall as "a test to be applied in
determining whether `a person has been "seized" within the meaning of
the Fourth Amendment,'" and noted that "[t]he Court has since
embraced this test." Ibid. Moreover, in commenting on the virtues of the
test, we explained that it focused on the police officer's conduct:
"The test's objective standard - looking to the
reasonable man's interpretation of the conduct in question - allows the police
to determine in advance whether the conduct contemplated will implicate the
Fourth Amendment." Id., at 574.
Expressing
his approval of the Court's rejection of Michigan's argument in Chesternut,
Professor LaFave observed:
"The `free to leave' concept, in other words, has
nothing to do with a particular suspect's choice to flee rather than submit or
with his assessment of the probability of successful flight. Were it otherwise,
police would be encouraged to utilize a very threatening but sufficiently slow
chase as an evidence-gathering technique whenever they lack even the reasonable
suspicion needed for a Terry stop." 3 W. LaFave, Search and Seizure 9.2,
p. 61 (2d ed. 1987, Supp. 1991). [499 U.S. 621, 642]
Whatever
else one may think of today's decision, it unquestionably represents a departure
from earlier Fourth Amendment case law. The notion that our prior cases
contemplated a distinction between seizures effected by a touching, on the one
hand, and those effected by a show of force, on the other hand, and that all of
our repeated descriptions of the Mendenhall test stated only a necessary, but
not a sufficient, condition for finding seizures in the latter category, is
nothing if not creative lawmaking. Moreover, by narrowing the definition of the
term seizure, instead of enlarging the scope of reasonable justifications for
seizures, the Court has significantly limited the protection provided to the
ordinary citizen by the Fourth Amendment. As we explained in Terry:
The danger in the logic which proceeds upon
distinctions between a `stop' and an `arrest,' or `seizure' of the person, and
between a `frisk' and a `search,' is twofold. It seeks to isolate from
constitutional scrutiny the initial stages of the contact between the policeman
and the citizen. And by suggesting a rigid all-or-nothing model of
justification and regulation under the Amendment, it obscures the utility of
limitations upon the scope, as well as the initiation, of police action as a
means of constitutional regulation." Terry v. Ohio, 392 U.S., at 17.
III
In
this case, the officer's show of force - taking the form of a head-on chase -
adequately conveyed the message that respondent was not free to leave.14
Whereas, in Mendenhall, there was nothing in the record [to] sugges[t] that the
respondent [499 U.S. 621, 643] had any objective reason to believe that she was
not free to end the conversation in the concourse and proceed on her way, 446
U.S., at 555, here, respondent attempted to end "the conversation"
before it began, and soon found himself literally "not free to leave"
when confronted by an officer running toward him head-on who eventually tackled
him to the ground. There was an interval of time between the moment that
respondent saw the officer fast approaching and the moment when he was tackled,
and thus brought under the control of the officer. The question is whether the
Fourth Amendment was implicated at the earlier or the later moment.
Because
the facts of this case are somewhat unusual, it is appropriate to note that the
same issue would arise if the show of force took the form of a command to
"freeze," a warning shot, or the sound of sirens accompanied by a
patrol car's flashing lights. In any of these situations, there may be a
significant time interval between the initiation of the officer's show of force
and the complete submission by the citizen. At least on the facts of this case,
the Court concludes that the timing of the seizure is governed by the citizen's
reaction, rather than by the officer's conduct. See ante, at 626-627. One
consequence of this conclusion is that the point at which the interaction
between citizen and police officer becomes a seizure occurs, not when a
reasonable citizen believes he or she is no longer free to go, but rather only
after the officer exercises control over the citizen.
In
my view, our interests in effective law enforcement and in personal liberty15
would be better served by adhering to a standard that "allows the police
to determine in advance whether the conduct contemplated will implicate the
Fourth [499 U.S. 621, 644] Amendment." Chesternut, 486 U.S., at 574. The
range of possible responses to a police show of force, and the multitude of
problems that may arise in determining whether, and at which moment, there has
been "submission," can only create uncertainty and generate
litigation.
In
some cases, of course, it is immediately apparent at which moment the suspect
submitted to an officer's show of force. For example, if the victim is killed
by an officer's gunshot,16 as in Tennessee v. Garner, 471 U.S. 1, 11 (1985)
("A police officer may not seize an unarmed, nondangerous suspect by
shooting him dead"),17 or by a hidden roadblock, as in Brower v. Inyo
County, 489 U.S. 593 (1989), the submission is unquestionably complete. But
what if, for example, William James Caldwell (Brower) had just been wounded
before being apprehended? Would it be correct to say that no seizure had
occurred, and therefore the Fourth Amendment was not implicated even if the
pursuing officer had no justification whatsoever for initiating the chase? The
Court's opinion in Brower suggests that the officer's responsibility should not
depend on the character of the victim's evasive action. The Court wrote:
"Brower's independent decision to continue the
chase can no more eliminate respondents' responsibility for the termination of
his movement effected by the roadblock than Garner's independent decision to
flee eliminated the Memphis police officer's responsibility for the termination
of his movement effected by the bullet." Id., at 595. [499 U.S. 621, 645]
It
seems equally clear to me that the constitutionality of a police officer's show
of force should be measured by the conditions that exist at the time of the
officer's action. A search must be justified on the basis of the facts available
at the time it is initiated; the subsequent discovery of evidence does not
retroactively validate an unconstitutional search. The same approach should
apply to seizures; the character of the citizen's response should not govern
the constitutionality of the officer's conduct.
If
an officer effects an arrest by touching a citizen, apparently the Court would
accept the fact that a seizure occurred, even if the arrestee should thereafter
break loose and flee. In such a case, the constitutionality of the seizure
would be evaluated as of the time the officer acted. That category of seizures
would then be analyzed in the same way as searches, namely, was the police
action justified when it took place? It is anomalous, at best, to fashion a
different rule for the subcategory of "show of force" arrests.
In
cases within this new subcategory, there will be a period of time during which
the citizen's liberty has been restrained, but he or she has not yet completely
submitted to the show of force. A motorist pulled over by a highway patrol car
cannot come to an immediate stop, even if the motorist intends to obey the
patrol car's signal. If an officer decides to make the kind of random stop
forbidden by Delaware v. Prouse, 440 U.S. 648 (1979), and, after flashing his lights,
but before the vehicle comes to a complete stop, sees that the license plate
has expired, can he justify his action on the ground that the seizure became
lawful after it was initiated, but before it was completed? In an airport
setting, may a drug enforcement agent now approach a group of passengers with
his gun drawn, announce a "baggage search," and rely on the
passengers' reactions to justify his investigative stops? The holding of
today's majority fails to recognize the coercive and intimidating nature of
such behavior, and creates a rule that may allow such behavior to go unchecked.
[499 U.S. 621, 646]
The
deterrent purposes of the exclusionary rule focus on the conduct of law
enforcement officers, and on discouraging improper behavior on their part,18
and not on the reaction of the citizen to the show of force. In the present
case, if Officer Pertoso had succeeded in tackling respondent before he dropped
the rock of cocaine, the rock unquestionably would have been excluded as the
fruit of the officer's unlawful seizure. Instead, under the Court's
logic-chopping analysis, the exclusionary rule has no application, because an
attempt to make an unconstitutional seizure is beyond the coverage of the
Fourth Amendment, no matter how outrageous or unreasonable the officer's
conduct may be.
It
is too early to know the consequences of the Court's holding. If carried to its
logical conclusion, it will encourage unlawful displays of force that will
frighten countless innocent citizens into surrendering whatever privacy rights
they [499 U.S. 621, 647] may still have. It is not too soon, however, to note
the irony in the fact that the Court's own justification for its result is its
analysis of the rules of the common law of arrest that antedated our decisions in
Katz and Terry. Yet, even in those days, the common law provided the citizen
with protection against an attempt to make an unlawful arrest. See nn. 5 and 7,
supra. The central message of Katz and Terry was that the protection the Fourth
Amendment provides to the average citizen is not rigidly confined by ancient
common law precept. The message that today's literal-minded majority conveys is
that the common law, rather than our understanding of the Fourth Amendment as
it has developed over the last quarter of a century, defines, and limits, the
scope of a seizure. The Court today defines a seizure as commencing, not with
egregious police conduct, but rather with submission by the citizen. Thus, it
both delays the point at which "the Fourth Amendment becomes
relevant"19 to an encounter and limits the range of encounters that will
come under the heading of "seizure." Today's qualification of the
Fourth Amendment means that innocent citizens may remain "secure in their
persons . . . against unreasonable searches and seizures" only at the
discretion of the police.20
Some
sacrifice of freedom always accompanies an expansion in the executive's
unreviewable21 law enforcement powers. [499 U.S. 621, 648] A court more
sensitive to the purposes of the Fourth Amendment would insist on greater
rewards to society before decreeing the sacrifice it makes today. Alexander
Bickel presciently wrote that "many actions of government have two
aspects: their immediate, necessarily intended, practical effects, and their
perhaps unintended or unappreciated bearing on values we hold to have more
general and permanent interest."22 The Court's immediate concern with
containing criminal activity poses a substantial, though unintended, threat to
values that are fundamental and enduring.
I
respectfully dissent.
[Footnote
1] The Fourth Amendment to the Constitution protects "[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. . . ."
[Footnote
2] Katz v. United States, 389 U.S. 347 (1967).
[Footnote
3] Terry v. Ohio, 392 U.S. 1 (1968).
[Footnote
4] The Court's gratuitous quotation from Proverbs 28:1, see ante, at 623, n. 1,
mistakenly assumes that innocent residents have no reason to fear the sudden
approach of strangers. We have previously considered, and rejected, this
ivory-towered analysis of the real world for it fails to describe the
experience of many residents, particularly if they are members of a minority.
See generally Johnson, Race and the Decision To Detain a Suspect, 93 Yale L.J.
214 (1983). It has long been "a matter of common knowledge that men who
are entirely innocent do sometimes fly from the scene of a crime through fear
of being apprehended as the guilty parties, or from an unwillingness to appear
as witnesses. Nor is it true as an accepted axiom of criminal law that
"the wicked flee when no man pursueth, but the righteous are as bold as a
lion." Alberty v. United States, 162 U.S. 499, 511 (1896).
[Footnote
5] "[I]f the officer pronounces words of arrest without an actual touching
and the other immediately runs away, there is no escape (in the technical
sense), because there was no arrest. It would be otherwise had the officer
touched the arrestee for the purpose of apprehending him, because touching for
the manifested purpose of arrest by one having lawful authority completes the
apprehension, "although he does not succeed in stopping or holding him
even for an instant." Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206
(1940) (footnotes omitted).
[Footnote
6] One who undertakes to make an arrest without lawful authority, or who
attempts to do so in an unlawful manner, is guilty of an assault if the other
is ordered to submit to the asserted authority, is guilty of battery if he lays
hands on the other for this unlawful purpose. . . . Id., at 263 (footnotes
omitted).
[Footnote
7] [E]ven without touching the other, the officer may subject himself to
liability if he undertakes to make an arrest without being privileged by law to
do so.3.
"3. For example, an officer might be guilty of an
assault because of an attempted arrest, without privilege, even if he did not
succeed in touching the other. Furthermore, if the other submitted to such an
arrest without physical contact, the officer is liable for false imprisonment.
Gold v. Bissell, 1 Wend. 210 (N.Y. Sup.Ct. 1828)." Id., at 201.
[Footnote
8] "We have recently held that "the Fourth Amendment protects people,
not places," Katz v. United States, 389 U.S. 347, 351 (1967), and wherever
an individual may harbor a reasonable "expectation of privacy," id.,
at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from
unreasonable governmental intrusion. Of course, the specific content and
incidents of this right must be shaped by the context in which it is asserted.
For `what the Constitution forbids is not all searches and seizures, but
unreasonable searches and seizures.' Elkins v. United States, 364 U.S. 206, 222
(1960). Terry v. Ohio, 392 U.S., at 9.
[Footnote
9] Hester v. United States, 265 U.S. 57 (1924), the case on which the majority
largely relies, was decided over 40 years before Terry. In that case, the
defendant did not even argue that there was a seizure of his person. The
Court's holding in Hester that the abandoned moonshine whiskey had not been
seized simply did not address the question whether it would have been the fruit
of a constitutional violation if there had been a seizure of the person before
the whiskey was abandoned.
[Footnote
10] The Court applied this principle in Brown v. Texas, 443 U.S. 47 (1979):
"We have recognized that, in some circumstances,
an officer may detain a suspect briefly for questioning, although he does not
have `probable cause' to believe that the suspect is involved in criminal
activity, as is required for a traditional arrest. However, we have required
the officers to have a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity." Id., at 51 (citations
omitted).
[Footnote
11] It is noteworthy that the Court has relied so heavily on cases and
commentary that antedated Katz and Terry.
[Footnote
12] The essential teaching of the Court's decision in Terry - that an
individual's right to personal security and freedom must be respected even in
encounters with the police that fall short of full arrest - has been
consistently reaffirmed. INS v. Delgado, 466 U.S. 210, 227 (1984) (Brennan, J.,
concurring in part and dissenting in part).
[Footnote
13] Petitioner argues that the Fourth Amendment is never implicated until an
individual stops in response to the police's show of authority. Thus,
petitioner would have us rule that a lack of objective and particularized
suspicion would not poison police conduct, no matter how coercive, as long as
the police did not succeed in actually apprehending the individual. Michigan v.
Chesternut, 486 U.S., at 572.
[Footnote
14] The California Court of Appeal noted:
This
case involves more than a pursuit, as Officer Pertoso did not pursue
[respondent], but ran in such a fashion as to cut him off and confront him head
on. Under the rationale of Chesternut, this action is reasonably perceived as
an intrusion upon one's freedom of movement, and as a maneuver intended to
block or "otherwise control the direction or speed" of one's
movement. App. A to Pet. for Cert. 9.
[Footnote
15] To determine the constitutionality of a seizure "[w]e 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." Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(citation omitted).
[Footnote
16] Even under the common law, "If an officer shoots at an arrestee when
he is not privileged to do so, he is guilty of an aggravated assault. And if
death results from an arrest, or attempted arrest, which was not authorized at
all, . . . the arrester is guilty of manslaughter or, in extreme cases, of
murder." Perkins, 25 Iowa L.Rev., at 263-264.
[Footnote
17] In Tennessee v. Garner, even the dissent agreed with the majority that the
police officer who shot at a fleeing suspect had "`seized' the suspect by
shooting him." 471 U.S., at 25 (O'CONNOR, J., dissenting).
[Footnote
18] The purpose of the Fourth Amendment is "`to prevent arbitrary and
oppressive interference by enforcement officials with the privacy and personal
security of individuals.'" INS v. Delgado, 466 U.S., at 215 (quoting
United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)); see Mendenhall,
446 U.S., at 553-554 (same); Terry v. Ohio, 392 U.S., at 12 ("Ever since
its inception, the rule excluding evidence seized in violation of the Fourth
Amendment has been recognized as a principal mode of discouraging lawless
police conduct"); 4 W. LaFave, Search and Seizure 11.4(j), pp. 459-460 (2d
ed. 1987) ("Incriminating admissions and attempts to dispose of
incriminating evidence are common and predictable consequences of illegal
arrests and searches, and thus to admit such evidence would encourage such
Fourth Amendment violations in future cases").
Justice
Brandeis wrote eloquently about the overarching purpose of the Fourth
Amendment:
The makers of our Constitution . . . sought
to protect Americans in their beliefs, their thoughts, their emotions and their
sensations. They conferred, as against the Government, the right to be let
alone - the most comprehensive of rights and the right most valued by civilized
men. To protect that right, every unjustifiable intrusion by the Government
upon the privacy of the individual, whatever the means employed, must be deemed
a violation of the Fourth Amendment. Olmstead v. United States, 277 U.S. 438,
478 (1928) (Brandeis, J., dissenting).
Today's opinion has lost sight of these purposes.
[Footnote
19] Terry v. Ohio, 392 U.S., at 16.
[Footnote
20] Justice Jackson presaged this development when he wrote:
"[A]n illegal search and seizure usually is a
single incident, perpetrated by surprise, conducted in haste, kept purposely
beyond the court's supervision, and limited only by the judgment and moderation
of officers whose own interests and records are often at stake in the search. .
. . The citizen's choice is quietly to submit to whatever the officers
undertake or to resist at risk of arrest or immediate violence." Brinegar
v. United States, 338 U.S. 160, 182 (1949) (Jackson, J., dissenting).
[Footnote
21] "[T]he right to be secure against searches and seizures is one of the
most difficult to protect. Since the officers are themselves the chief
invaders, there is no enforcement outside of court. . . . There may be, and I
am convinced that there are, many unlawful searches of homes and automobiles
[499 U.S. 621, 648] of innocent people which turn up nothing incriminating, in
which no arrest is made, about which courts do nothing, and about which we
never hear. Id., at 181 (Jackson, J., dissenting).
[Footnote
22] The Least Dangerous Branch 24 (1962). [499 U.S. 621, 1]