UNITED STATES v. SHARPE ET AL.
No. 83-529
SUPREME COURT OF THE UNITED STATES
Argued November 27, 1984—Decided March 20, 1985
470 U.S. 675
Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Elliott Schulder, and Patty Merkamp Stemler.
Mark J. Kadish, by invitation of the Court, 469 U. S. 809, argued the cause and filed a brief as amicus curiae in support of the judgment below.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether an individual reasonably suspected of engaging in criminal activity may be
I
A
On the morning of June 9, 1978, Agent Cooke of the Drug Enforcement Administration (DEA) was on patrol in an unmarked vehicle on a coastal road near Sunset Beach, North Carolina, an area under surveillance for suspected drug trafficking. At approximately 6:30 a. m., Cooke noticed a blue pickup truck with an attached camper shell traveling on the highway in tandem with a blue Pontiac Bonneville. Respondent Savage was driving the pickup, and respondent Sharpe was driving the Pontiac. The Pontiac also carried a passenger, Davis, the charges against whom were later dropped. Observing that the truck was riding low in the rear and that the camper did not bounce or sway appreciably when the truck drove over bumps or around curves, Agent Cooke concluded that it was heavily loaded. A quilted material covered the rear and side windows of the camper.
Cooke‘s suspicions were sufficiently aroused to follow the two vehicles for approximately 20 miles as they proceeded south into South Carolina. He then decided to make an “investigative stop” and radioed the State Highway Patrol for assistance. Officer Thrasher, driving a marked patrol car, responded to the call. Almost immediately after Thrasher caught up with the procession, the Pontiac and the pickup turned off the highway and onto a cаmpground road.1 Cooke and Thrasher followed the two vehicles as the latter drove along the road at 55 to 60 miles an hour, exceeding the speed limit of 35 miles an hour. The road eventually looped back to
At this point, all four vehicles were in the middle lane of the three right-hand lanes of the highway. Agent Cooke asked Officer Thrasher to signal both vehicles to stop. Thrasher pulled alongside the Pontiac, which was in the lead, turned on his flashing light, and motioned for the driver of the Pontiac to stop. As Sharpe moved the Pontiac into the right lane, the pickup truck cut between the Pontiac and Thrasher‘s patrol car, nearly hitting the patrol car, and continued down the highway. Thrasher pursued the truck while Cooke pulled up behind the Pontiac.
Cooke approached the Pontiac and identified himself. He requested identification, and Sharpe produced a Georgia driver‘s license bearing the name of Raymond J. Pavlovich. Cooke then attempted to radio Thrasher to determine whether he had been successful in stopping the pickup truck, but he was unable to make contact for several minutes, apparently because Thrasher was not in his patrol car. Cooke radioed the local police for assistance, and two officers from the Myrtle Beach Police Department arrived about 10 minutes later. Asking the two officers to “maintain the situation,” Cooke left to join Thrasher.
In the meantime, Thrasher had stopped the pickup truck about one-half mile down the road. After stopping the truck, Thrasher had approached it with his revolver drawn, ordered the driver, Savage, to get out and assume a “spread eagled” position against the side of the truck, and patted him down. Thrasher then holstered his gun and asked Savage for his driver‘s license and the truck‘s vehicle registration. Savage produced his own Florida driver‘s license and a bill of sale for the truck bearing the name of Pavlovich. In response to questions from Thrasher concerning the ownership of the truck, Savage said that the truck belonged to a friend and that he was taking it to have its shock absorbers repaired. When Thrasher told Savage that he would be held
Agent Cooke arrived at the scene approximately 15 minutes after the truck had been stopped. Thrasher handed Cooke Savage‘s license and the bill of sale for the truck; Cooke noted that the bill of sale bore the same name as Sharpe‘s license. Cooke identified himself to Savage as a DEA agent and said that he thought the truck was loaded with marihuana. Cooke twice sought permission to search the camper, but Savage declined to give it, explaining that he was not the owner of the truck. Cooke then stepped on the rear of the truck and, observing that it did not sink any lower, confirmed his suspicion that it was probably overloaded. He put his nose against the rear window, which was covered from the inside, and reported that he could smell marihuana. Without seeking Savage‘s permission, Cooke removed the keys from the ignition, opened the rear of the camper, and observed a large number of burlap-wrapped bales resembling bales of marihuana that Cooke had seen in previous investigations. Agent Cooke then placed Savage under arrest and left him with Thrasher.
Cooke returned to the Pontiac and arrested Sharpe and Davis. Approximately 30 to 40 minutes had elapsed between the time Cooke stopped the Pontiac and the time he returned to arrest Sharpe and Davis. Cooke assembled the various parties and vehicles and led them to the Myrtle Beach police station. That evening, DEA agents took the truck to the Federal Building in Charleston, South Carolina. Several days later, Cooke supervised the unloading of the truck, which contained 43 bales weighing a total of 2,629 pounds. Acting without a search warrant, Cooke had eight randomly selected bales opened and sampled. Chemical tests showed that the samples were marihuana.
Sharpe and Savage were charged with possession of a controlled substance with intent to distribute it in violation of
A divided panel of the Court of Appeals for the Fourth Circuit reversed the convictions. Sharpe v. United States, 660 F. 2d 967 (1981). The majority assumed that Cooke “had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marijuana trafficking when he and Thrasher stopped the Pontiac and the truck.” Id., at 970. But the court held the investigative stops unlawful because they “failed to meet the requirement of brevity” thought to govern detentions on less than probable cause. Ibid. Basing its decision solely on the duration of the respondents’ detentions, the majority concluded that “the length of the detentions effectively transformed them into de facto arrests without bases in probable cause, unreasonable seizures under the
The Government petitioned for certiorari, asking this Court to review both of the alternative grounds held by the Court of Appeals to justify suppression. We granted the petition, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in the light of the intervening decision in United States v. Ross, 456 U. S. 798 (1982). United States v. Sharpe, 457 U. S. 1127 (1982).
We granted certiorari, 467 U. S. 1250 (1984), and we reverse.2
A
The
“whether the officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id., at 20.
As to the first part of this inquiry, the Court of Appeals assumed that the police had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marihuana trafficking, given the setting and all the circumstances when the police attempted to stop the Pontiac and the pickup. 660 F. 2d, at 970. That assumption is abundantly supported by the record.3 As to the second part of the in-
quiry, however, the court concluded that the 30- to 40-minute detention of Sharpe and the 20-minute detention of Savage “failed to meet the [
It is not necessary for us to decide whether the length of Sharpe‘s detention was unreasonable, because that detention bears no causal relation to Agent Cooke‘s discovery of the marihuana. The marihuana was in Savage‘s pickup, not in Sharpe‘s Pontiac; the contraband introduced at respondents’ trial cannot logically be considered the “fruit” of Sharpe‘s detention. The only issue in this cаse, then, is whether it was reasonable under the circumstances facing Agent Cooke and Officer Thrasher to detain Savage, whose vehicle contained the challenged evidence, for approximately 20 minutes. We conclude that the detention of Savage clearly meets the
The Court of Appeals did not question the reasonableness of Officer Thrasher‘s or Agent Cooke‘s conduct during their detention of Savage. Rather, the court concluded that the length of the detention alone transformed it from a Terry stop into a de facto arrest. Counsel for respondents, as amicus curiae, assert that conclusion as their principal argument before this Court, relying particularly upon our decisions in Dunaway v. New York, 442 U. S. 200 (1979); Florida v. Royer, 460 U. S. 491 (1983); and United States v. Place, 462 U. S. 696 (1983). That reliance is misplaced.
In Dunaway, the police picked up a murder suspect from a neighbor‘s home and brought him to the police station, where, after being interrogated for an hour, he confessed.
In Royer, government agents stopped the defendant in an airport, seized his luggage, and took him to a small room used for questioning, where a search of the luggage revealed narcotics. The Court held that the defendant‘s detention constituted an arrest. See 460 U. S., at 503 (plurality opinion); id., at 509 (POWELL, J., concurring); ibid. (BRENNAN, J., concurring in result). As in Dunaway, though, the focus was primarily on facts other than the duration of the defendant‘s detention—particularly the fact that the police confined the defendant in a small airport room for questioning.
The plurality in Royer did note that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” 460 U. S., at 500. The Court followed a similar approach in Place. In that case, law enforcement agents stopped the defendant after his arrival in an airport and seized his luggage for 90 minutes to take it to a narcotics detection dog for a “sniff test.” We decided that an investigative seizure of personal property could be justified under the Terry doctrine, but that “[t]he length of the detention of respondent‘s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.” 462 U. S., at 709. However, the rationale underlying that conclusion was premised on the fact that the police knew of respondent‘s arrival time
Here, the Court of Appeals did not conclude that the police acted less than diligently, or that they unnecessarily prolonged Savage‘s detention. Place and Royer thus provide no support for the Court of Appeals’ analysis.
Admittedly, Terry, Dunaway, Royer, and Place, considered together, may in some instances create difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest. Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that “the brevity of the invasion of the individual‘s
We sought to make this clear in Michigan v. Summers, supra:
“If the purpose underlying a Terry stop—investigating possible criminal activity—is to be served, the police must under certain circumstanсes be able to detain the
individual for longer than the brief time period involved in Terry and Adams [v. Williams, 407 U. S. 143 (1972)].” 452 U. S., at 700, n. 12.
Later, in Place, we expressly rejected the suggestion that we adopt a hard-and-fast time limit for a permissible Terry stop:
“We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation.” 462 U. S., at 709, n. 10.
The Court of Appeals’ decision would effectively establish a per se rule that a 20-minute detention is too long to be justified under the Terry doctrine. Such a result is clearly and fundamentally at odds with our approach in this area.
B
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. See Michigan v. Summers, supra, at 701, n. 14 (quoting 3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978)); see also Place, 462 U. S., at 709; Royer, 460 U. S., at 500. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. See generally post, at 712-716 (BRENNAN, J., dissenting). A creative judge engaged in post hoc evaluation of police conduct can almost always imagine
We readily conclude that, given the circumstances facing him, Agent Cooke pursued his investigation in a diligent and reasonable manner. During most of Savage‘s 20-minute detention, Cooke was attempting to contact Thrasher and enlisting the help оf the local police who remained with Sharpe while Cooke left to pursue Officer Thrasher and the pickup. Once Cooke reached Officer Thrasher and Savage,5 he proceeded expeditiously: within the space of a few minutes, he examined Savage‘s driver‘s license and the truck‘s bill of sale, requested (and was denied) permission to search the truck, stepped on the rear bumper and noted that the truck did not move, confirming his suspicion that it was probably overloaded. He then detected the odor of marihuana.
Clearly this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers. Respondents presented no evidence that the officers were dilatory in their investigation. The delay in this case was
We reject the contention that a 20-minute stop is unreasonable when the police have acted diligently and a suspect‘s actions contribute to the added delay about which he complains. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
JUSTICE BLACKMUN, concurring.
In view of respondents’ fugitive status, see ante, at 681-682, n. 2, I would have vacated the judgment of the Court of Appeals and remanded the case to that court with directions to dismiss the respondents’ appeal from the District Court‘s judgment to the Court of Appeals. See Molinaro v. New Jersey, 396 U. S. 365 (1970).
This Court, however, does not follow that path, and chooses to decide the case on the merits. I therefore also reach the merits and join the Court‘s opinion.
JUSTICE MARSHALL, concurring in the judgment.
I join thе result in this case because only the evasive actions of the defendants here turned what otherwise would
I
Terry v. Ohio, 392 U. S. 1, 27 (1968), recognized a “narrowly drawn” exception to the probable-cause requirement of the
“First, it defined a special category of
Fourth Amendment ‘seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to makeFourth Amendment ‘seizures’ reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause....”
Similarly, in United States v. Place, 462 U. S. 696, 703 (1983), the Court held that, “[w]hen the nature and extent of the detention are minimally intrusive of the individual‘s
For this reason, in reviewing any Terry stop, the “critical threshold issue is the intrusiveness of the seizure.” United States v. Place, supra, at 722 (BLACKMUN, J., concurring in judgment). Regardless how efficient it may be for law enforcement officials to engage in prolonged questioning to investigate a crime, or how reasonable in light of law enforcement objectives it may be to detain a suspect until various inquiries can be made and answered, a seizure that in duration, scope, or means goes beyond the bounds of Terry cannot be reconciled with the
Consistent with the rationales that make Terry stops legitimate, we have recognized several times that the requirement that Terry stops be brief imposes an independent and per se limitation on the extent to which officials may seize an individual on less than probable cause. The Court explicitly so held in Place, where we invalidated a search that was the product of a lengthy detention; as the Court said: “The length of the detention . . . alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. . . . [T]he 90-minute detention . . . is sufficient to render the seizure unreasonable . . . . ”3 462 U. S., at 709-710. See also United States v. Hensley, 469 U. S. 221, 235 (1985) (“[A] detention might well be so lengthy or intrusive as to exceed the permissible limits of a Terry stop“); Florida v. Royer, 460 U. S. 491, 500 (1983) (“[A]n investigative detention must be temporary . . .“); id., at 510-511 (BRENNAN, J., concurring in result) (“[A]ny suggestion that the Terry reasonable-suspicion standard justifies anything but the briefest of detentions . . . finds no support in the Terry line of cases“); Summers, supra, at 705, n. 21
The requirement that Terry stops be brief no matter what the needs of law enforcement in the particular case is buttressed by several sound pragmatic considerations. First, if the police know they must structure their Terry encounters so as to confirm or dispel the officer‘s reasonable suspicion in a brief time, police practices will adapt to minimize the intrusions worked by these encounters. Cf. United States v. Place, supra (to assure brevity of Terry airport stops, narcotic detection dogs must, under some circumstances, be kept in same airport to which suspect is arriving). Firm adherence to the requirement that stops be brief forces law enforcement officials to take into account from the start the serious and constitutionally protected liberty and privacy interests implicated in Terry stops, and to alter official conduct accordingly.4
Second, a per se ban on stops that arе not brief yields the sort of objective standards mandated by our
Constitutional rights should not vary in this manner. Yet in the absence of a brevity standard that is independent of
Finally, dissolving the brevity requirement into the general standard that the seizure simply be reasonable will “inevitably produce friction and resentment [among the police], for there are bound to be inconsistent and confusing decisions.” Schwartz, Stop and Frisk, 58 J. Crim. L. C. & P. S. 433, 449 (1967). The police themselves may have done nothing unreasonable in holding a motorist for one hour while waiting for a registration computer to come back on line, but surely such a prolonged detention would be unlawful. Indeed, in my view, as soon as a patrolman called in and learned that the computer was down, the suspect would have to be released. That is so not because waiting for information in this circumstance is unreasonable, but simply because the stop must be brief if it is to be constitutional on less than probable cause. A “balancing” test suggests that a stop is invalid only if officials have crossed over some line they
For these reasons, fidelity to the rationales that justify Terry stops requires that the intrusiveness of the stop be measured independently of law enforcement needs. A stop must first be found not unduly intrusive, particularly in its length, before it is proper to consider whether law enforcement aims warrant limited investigation.
II
We have had little occasion to specify the length to which a stop can be extended before it can no longer be justified on less than probable cause. But see United States v. Place, 462 U. S. 696 (1983) (90-minute seizure too long). In Terry and Adams v. Williams, 407 U. S. 143, 146 (1972), we described the stop simply as “brief.” In United States v. Brignoni-Ponce, 422 U. S. 873, 880 (1975), we upheld a “modest” stop that “usually consumed no more than a minute.” Dunaway v. New York, 422 U. S. 200 (1979), United States v. Martinez-Fuerte, supra, at 558, and United States v. Hensley, 469 U. S. 221 (1985), drew upon Terry to characterize permissible stops as “brief” ones; Florida v. Royer, 460 U. S. 491 (1983), described a legitimate Terry stop as
The Court has “decline[d] to adopt any outside time limitation for a permissible Terry stop.” Place, supra, at 709. While a Terry stop must be brief no matter what the needs of the authorities, I agree that Terry‘s brevity requirement is not to be judged by a stopwatch but rather by the facts of particular stops. At the same time, the time it takes to “briefly stop [the] person, ask questions, or check identification,” United States v. Hensley, supra, at 229, and, if warranted, to conduct a brief pat-down for weapons, see Terry, is typically just a few minutes. In my view, anything beyond this short period is presumptively a de facto arrest. That presumption can be overcome by showing that a lengthier detention was not unduly intrusive for some reason; as in this case, for example, the suspects, rather than the police, may have prolonged the stop.9 It cannot, however, be overcome simply by showing that police needs required a more intrusive stop. For that reason, I regard the American Law Institute‘s suggested maximum of 20 minutes10 as too long; “any suggestion that the Terry reasonable-suspicion standard justifies anything but the briefest of detentions or the most limited of searches finds no support in the Terry line of cases.” Royer, supra, at 510-511 (BRENNAN, J., concurring in result).
III
In light of these principles, I cannot join the Court‘s opinion. The Court offers a hodgepodge of reasons to explain why the 20-minute stop at issue here was permissible. At points we are told that the stop was no longer than “necessary” and that the police acted “diligently” in pursuing their investigation, all of which seems to suggest that, as long as a stop is no longer than necessary to the “legitimate investigation of the law enforcement officers,” the stop is perfectly lawful. See ante, at 677, 685, 686. As I have just argued, such reasoning puts the horse before the cart by failing to focus on the critical threshold question of the intrusiveness of the stop, particularly its length. With respect to that question, the Court seems in one breath to chastise the Court of Appeals for concluding that the length of a detention alone can transform a Terry stop into a de facto arrest, see ante, at 680, 682-683, while in another breath the Court acknowledges that, “if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Ante, at 685.
Fortunately, it is unnecessary to try to sort all of this out, for another rationale offered by the Court adequately disposes of this case. As the Court recognizes: “The delay in this case was attributable almost entirely to the evasive actions of Savage, who sought to elude the police as Sharpe
IV
I also cannot join the Court‘s opinion because it reaches out to decide a wholly distinct issue not presented and not capable of being treated fairly without further development of a factual record. The Court of Appeals assumed, without deciding, that an objectively reasonable suspicion of criminal activity existed to justify these stops. The District Court, after listening to the officers explain the basis on which they purported to make the stop, and after testimony taking up 450 pages of transcript, found the legality of the initial stop to present “a real close question.” App. 45. This question was not presented in the certiorari petition and not a single word is devoted to it in the briefs. Yet in what can only be construed as a thinly disguised attempt to decide the question, the Court, from its position atop the judicial system, concludes that the Court of Appeals’ assumption arguendo that the stop was legal is “abundantly” supported by the record, ante, at 682—an abundance not evident to the District Court. Cf. Anderson v. Bessemer City, ante, p. 564 (district court credibility determinations entitled to strongest deference).
Of course, the proper approach to this issue is illustrated by United States v. Place, 462 U. S., at 700, n. 1, where, as here, the Court of Appeals had assumed the existence of reasonable suspicion and certiorari had not been granted on the question; the Court correctly concluded that it had “no occasion to address the issue here.” Ibid. Consistency, however, hardly has been a hallmark of the current Court‘s
Moreover, aside from the fact that the reasonable-suspicion issue was not presented, briefed, or argued by the parties,
V
In my view, the record demonstrates that the lengthy stop at issue in this case would have been permissibly brief but for the respondents’ efforts to evade law enforcement officials. Accordingly, I agree with the Court‘s judgment. But because there is no way to fathom the extent to which the majority‘s holding rests on this basis, and because the majority acts with unseemly haste to decide other issues not presented, I join only its judgment.
JUSTICE BRENNAN, dissenting.
The respondent William Sharpe and his passenger were pulled over to the side of the highway, concededly without probable cause, and held for more than 30 minutes, much of that time in the back seat of a police cruiser, before they ultimately were arrested and informed of the charges against them. In the meantime, the respondent Donald Savage was stopped one-half mile down the road, also according to the Court without probable cause. He was ordered out of his pickup truck at gunpoint, spread-eagled and frisked, and
The Court today concludes that these lengthy detentions constituted reasonable investigative stops within the meaning of Terry v. Ohio, 392 U. S. 1 (1968). It explains that, although the length of an investigative stop made without probable cause may at some point become so excessive as to violate the
I dissent. I have previously expressed my views on the permissible scope and duration of Terry stops, and need not recount those views in detail today. See, e. g., United States v. Place, 462 U. S. 696, 710 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson, 461 U. S. 352, 362 (1983) (BRENNAN, J., concurring); Florida v. Royer, 460 U. S. 491, 509 (1983) (BRENNAN, J., concurring in result). I write at some length, however, because I believe the Court‘s opinion illustrates several disturbing trends in our disposition of cases involving the rights of citizens who have been accused of crime. First, the Court increasingly tends to reach out and decide issues that are not before it. If the facts in this case are as the Court recounts them, for example, the propriety of these lengthy detentions would not appear to be governed by the Terry line of cases at all, and the Court‘s opinion is therefore little more than 13 pages of ill-considered dicta. Second, the Court of late shows increasing eagerness to make purely factual findings in the first instance where convenient to support its desired result. For example, the Court‘s conclusion in this case that Savage “sought to elude the police” is a de novo factual determination resting on a record that is ambiguous at best. Finally, the Court in criminal cases increasingly has evaded the plain requirements of our precedents where they would stand in the way of a judgment for the government. For a Terry stop to be upheld, for example, the government must show at a minimum that the “least intrusive means reasonably available” were used in carrying out the stop. Florida v. Royer, supra, at 500 (opinion of WHITE, J.).1 The Government has made no such showing here, and the Court‘s bald assertion that “[c]learly this case does not involve any delay unnecessary” to “legitimate” law enforcement, ante, at 687, is completely undermined by the record before us.
I
The Court portrays the circumstances leading up to these detentions with a studied flourish. Before Sharpe and Sav-
If the facts are as the Court relates them, it is not readily apparent why the Court insists on using this case as a vehicle for expanding the outer bounds of Terry investigative stops. I had thought it rather well established that where police officers reasonably suspect that an individual may be engaged in criminal activity, and the individual deliberately takes flight when the officers attempt to stop and question him, the officers generally no longer have mere reasonable suspicion, but probable cause to arrest. See, e. g., Peters v. New York, decided together with Sibron v. New York, 392 U. S. 40, 66-67 (1968) (companion case to Terry) (“[D]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest“). See also Kolender v. Lawson, supra, at 366, n. 4 (BRENNAN, J., concurring) (“[S]ome reactions by individuals to a properly limited Terry encounter, such as flight, may often provide the necessary information, in addition to that which the officers already possess, to constitute probable cause“); Henry v. United States, 361 U. S. 98, 103 (1959) (suspicious circumstances did not ripen into probable cause because defendants’ “movements in the car had no mark of fleeing men or men
Of course, flight alone cannot give rise to probable cause; it must be coupled with pre-existing reasonable and articulable suspicion. See 1 W. LаFave, Search and Seizure § 3.6, p. 669 (1978).3 And the act of flight must reasonably appear to be in response to the presence of the authorities.4 Here,
Thus if the facts were as the Court describes them, I would be inclined to view this as a probable-cause detention, and the reasonableness of these stops under Terry would not appear to be before us. The Court‘s failure even to consider this question of probable cause is baffling, but ultimately in keeping with its recent practice in Terry cases of reaching out far beyond what is required to resolve the cases at hand so as more immediately to impose its views without the bother of abiding by the necessarily gradual pace of case-by-case decisionmaking. See, e. g., United States v. Place, 462 U. S., at 711, 714-720 (BRENNAN, J., concurring in result); Florida v. Royer, 460 U. S., at 509, 511, n. (BRENNAN, J., concurring in result).
II
The Court‘s opinion is flawed in another critical respect: its discussion of Savage‘s purported attempt “to elude the police” amounts to nothing more than a de novo factual finding made on a record that is, at best, hopelessly ambiguous. Neither the District Court nor the Court of Appeals ever found that Savage‘s actions constituted evasion or flight. If we are nevertheless to engage in de novo factfinding, I
First, Savage‘s actions in continuing to drive down the highway could well have been entirely consistent with those of any driver who sees the police hail someone in front of him over to the side of the road. Sharpe‘s Pontiac was at least several car lengths in front of Savage‘s pickup truck; Thrasher thought there was a separation of “a car length or two,” while Coоke testified that the distance was anywhere from between 30-50 and 100-150 feet. 3 Record 65; 4 id., at 139. Approaching in the far-left lane, Thrasher pulled even with Sharpe‘s lead vehicle, “turned the blue light on,” “blew the siren,” and “motioned for him to pull over.” Id., at 145 (emphasis added). Savage moved into the right lane so as to avoid hitting Thrasher, who was slowing along with Sharpe, and continued on his way. Neither Cooke nor Thrasher ever testified that Savage “sought to elude” them, and there is nothing here that is necessarily inconsistent with the actions of any motorist who happens to be behind a vehicle that is being pulled over to the side of the road.
This view of the record is strongly reinforced by Thrasher‘s inability on the stand to give a responsive answer to the question: “Would you say the pickup truck was attempting to allude [sic] you or just passed you by thinking you had stopped the car?” 3 id., at 84. Thrasher replied with the nonanswer that “[w]ell, I was across . . . partially in two lanes and he got by me in the other lane,” ibid.—an observation that could be made about any motorist driving by a stop-in-progress.
Finally, the “[f]ail[ure] to stop [a] motor vehicle when signaled by [a] law-enforcement vehicle” is an independent traffic violation in South Carolina.6 Thrasher testified that
None of these factors, singularly or together, show beyond a doubt that Savage proceeded innocently past the stop of Sharpe. But given that it is the Government‘s burden to prove facts justifying the duration of the investigative detention, Florida v. Royer, supra, at 500 (opinion of WHITE, J.), and given that the courts below never found that Savage “sought to elude” the authorities,7 the Court‘s conclusion to the contrary is extremely disturbing. I do not believe that citizens should be deemed to have forfeited important
III
A
Because it has not been shown that Savage “sought to elude” the police, I agree with the Court that the constitutional propriety of these detentions is governed by Terry and its progeny. These precedents lead inexorably to the conclusion that the investigative actions at issue here violated the
First. Assuming that Savage did not break away from the officers by taking “evasive actions” to “elude” them—in which instance this is not a Terry case at all—the Government has not demonstrated why two trained law enforcement officers driving in separate vehicles, both equipped with flashing lights,12 could not have carried out a stop of a Pontiac and a pickup truck in such a manner as to ensure that both vehicles would be stopped together. Reasonable methods for bringing about the proximate stop of two vehicles readily come to mind; such methods would have been particularly important if, as the Court assumes, both officers knew that only Cooke was capable of carrying out the investigation.
Second. If the officers believed that the suspected marihuana was in Savage‘s pickup truck, and if only Cooke was capable of investigating for the presence of marihuana, I am at a loss why Cooke did not follow the truck and leave Thrasher with the Pontiac, rather than vice versa.13
“It was appropriate for Officer Thrasher to hold Savage for the brief period pending Cooke‘s arrival. Thrasher could not be certain that he was aware of all of the facts that had aroused Cooke‘s suspicions; and, as a highway patrolman, he lacked Cooke‘s training and experience in dealing with narcotics investigations.” Ante, at 687, n. 5.
The record wholly undermines the Court‘s conclusion. Far from being unaware of what was going on, Thrasher had conversed with Cooke by radio while they were following the vehicles and had fully discussed the various factors that might justify an investigative stop.14 Cooke sought out Thrasher‘s “professional opinion” on the situation, and it was Thrasher who ultimately made the determination that they properly could stop the vehicles.15 Thrasher‘s “professional opinion” was that, based on what Cooke had told him and his own observations, the truck “might be loaded” with marihuana.16 Once he had stopped Savage, Thrasher
Finally. The record strongly suggests that the delay may have been attributable in large measure to the poor investigative coordination and botched communications on the part of the DEA. Drug enforcement agents were swarming throughout the immediate area on the morning that Savage and Sharpe were detained, conducting numerous roadblocks and “profile stops” of campers and recreational vehicles similar to Savage‘s. See n. 9, supra. Even accepting the Court‘s dubious premise that a highway patrolman is somehow incapable of carrying out a simple investigative stop, it is clear that Cooke had followed Sharpe and Savage for over 30 minutes and, knowing that a multiple-vеhicle stop was in the offing, should have obtained assistance from other DEA agents. This was, in fact, precisely what he attempted to do. He repeatedly tried to contact the area DEA headquarters but complained over his police radio that “I can‘t raise anybody else right now.” Defendant‘s Ex. 1, p. 3 (police-
Far from demonstrating that these investigative stops were carried out in the most “expeditious way” using all “reasonably available” investigative methods, Florida v. Royer, 460 U. S., at 500, 505 (opinion of WHITE, J.), the record in this case therefore strongly suggests custodial detentions more accurately characterized as resulting from hopelessly bungled communications and from Thrasher‘s unwillingness to tread on Cooke‘s investigative turf. I do not mean to suggest that Cooke and Thrasher bore the entire blame for these delays; it was not Cooke‘s fault that his DEA backups apparently were sleeping or eating breakfast rather than monitoring their radios for his calls, and Thrasher might well have felt that it was not his place to carry out an investigation he apparently was fully capable of conducting. But constitutional rights should not so easily be balanced away simply because the individual officers may have subjectively been acting in good faith, especially where an objective evaluation of the facts suggests an unnecessarily intrusive exercise of police power.20
B
We must remember the
Terry‘s brevity requirement thus functions as an important constitutional safeguard that prevents an investigative stop from being transformed into a custodial detention merely because “the law enforcement purposes to be served by the stop” are considered important. Ante, at 685. Absent a rigorously enforced brevity requirement, the Terry rationale “would threaten to swallow the general rule that
In this connection, I am particularly disturbed by the Court‘s suggestion that it might be constitutionally reasonable for a highway patrolman to hold a motorist on Terry suspicion pending the arrival of an officer with more “training and experience.” Ante, at 687, n. 5. The Court is of course correct in emphasizing that Cooke was much more expert at drug detection than Thrasher. I can imagine a great many roadside stop situations in which it might make good police sense for the detaining officer to hold the motorist indefinitely without probable cause so that the officer could have an expert interrogator drive out from the city to conduct the “brief” questioning authorized by Terry, or so that his more experienced sergeant could be summoned to render a second opinion, or so that a trained narcotics dog owned by the adjacent county could be driven out to sniff around the windows. I can also imagine circumstances where, given the limited number of patrol cars in a community, an officer might prefer to hаndcuff a person stopped for investigative questioning to a lamppost while the officer responded to an emergency call. All of these actions might be preferable from a law enforcement standpoint. The Framers did not enact the
The Court today has evaded these requirements, failed even to acknowledge the evidence of bungling, miscommunication, and reasonable investigative alternatives, and pronounced simply that the individual officers “acted diligently.” Ante, at 688. Thus the Court has moved a step or two further in what appears to be “an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the
IV
Justice Douglas, the lone dissenter in Terry, warned that “[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand.” 392 U. S., at 39. Those hydraulic pressures are readily apparent in the outcome of this case. The Court has eschewed narrow grounds of decision so as to expand the bounds of Terry; engaged in questionable de novo factfinding in violation of its proper mission; either ignored or misconstrued numerous factors in the record that call into question the reasonableness of these custodial detentions; and evaded the
JUSTICE STEVENS, dissenting.
Both respondents are fugitives.1 Their status raises a procedural question that is of more significance than the merits of the somewhat fact-bound questions that the Government‘s petition for certiorari presented.2 The procedural question is important because escapes by persons engaged in
If a defendant escapes, and remains at large while his appeal is pending, the appeal will normally be dismissed.4 Over a century ago, in Smith v. United States, 94 U. S. 97 (1876), the Court explained the rationale for this type of disposition:
“It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.”5
Almost a century later, in Estelle v. Dorrough, 420 U. S. 534 (1975) (per curiam), we further noted that “[d]isposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law,” and that “[t]his Court itself has long followed the practice of declining
The record establishes that the respondents were apprehended while engaged in a serious and flagrant violation of law. Their appeal to the Court of Appeals was based on a claim that the evidence of their guilt was obtained in an unlawful search; such a claim, even if meritorious, establishes neither a lack of culpability nor any fundamental unfairness in the trial process.8 It is therefore entirely appropriate to conclude that, as fugitives, these litigants should not be accorded standing to advance their claim on appeal.9
As would have been true if they had escaped while their appeal was pending before the Court of Appeals, neither of these litigants “is where he can be made to respond to any
The Court states, ante, at 681, n. 2, that because a “reversal of the Court of Appeals’ judgment may lead to the reinstatement of respondents’ convictions, respondents’ fugitive status does not render this case moot.” I agree that the case is not technically moot.12 An escape, however, may compromise the adversary character of the litigation. The lawyer for the escapee presumably will have lost contact with his client; his desire to vindicate a faithless client may be less than zealous; and, as noted, the Court cannot have its normal control over one of the parties to the case before it. The risk that the adversary process will not function effectively counsels against deciding the merits of a case of this kind.13
The correct disposition of this case, I believe, is to treat it as though the respondents’ escape had mooted the appeal. If we vacate the judgment of the Court of Appeals, and if we direct that the appeal from the judgment of the District
There is one adverse consequence of the disposition I propose. It would deprive the Court of the opportunity to write
requires that we predicate the disposition of this case on the respondents’ fugitive status.
Accordingly, I respectfully dissent.
Notes
We granted certiorari on June 18, 1984. On August 27, counsel for respondents notified the Court that respondents had become fugitives. On October 1, we directed counsel for respondents to file a brief as amicus curiae in support of affirmance of the Court of Appeals’ judgment. Because our reversal of the Court of Appeals’ judgment may lead to the reinstatement of respondents’ convictions, respondents’ fugitive status does not render this case moot. See United States v. Villamonte-Marquez, 462 U. S. 579, 581–582, n. 2 (1983); Molinaro v. New Jersey, 396 U. S. 365, 366 (1970) (per curiam).
JUSTICE STEVENS would have this Court adopt a rule that, whenever a respondent or appellee before the Court becomes a fugitive before we render a decision, we must vacate the judgment under review and remand with directions to dismiss the appeal. This theory is not supported by our precedents, and indeed would be a break with a recent decision. The line of authority upon which the dissent relies concerns the situation in which a fugitive defendant is the party seeking review here. In those very different cases, dismissal of the petition or appeal is based on the equitable principle that a fugitive from justice is “disentitled” to call upon this Court for a review of his conviction. See United States v. Campos-Serrano, 404 U. S. 293, 294-295, n. 2 (1971); Molinaro, supra, at 366; see also Estelle v. Dorrough, 420 U. S. 534, 541-542 (1975) (per curiam). This equitable principle is wholly irrelevant when the defendant has had his conviction nullified and the government seeks review here. Thus, when confronted with precisely this situation in Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam), we did not hesitate to reach and decide the merits of the case; had we thought that we should decline to reach every constitutional issue that might become moot, we would have denied certiorari. Cf. Eisler v. United States, 338 U. S. 189, 194 (1949) (Murphy, J., dissenting) (“That the case may become moot if a defendant does not return does not distinguish it from any other case we decide. For subsequent events may render any decision nugatory“).
338 U. S. 160, 183 (1949) (Jackson, J., dissenting) (“[J]udicial exceptions to the- “Whether law enforcement officers may temporarily detain an individual reasonably suspected of criminal activity for the period—brief, but exceeding a few minutes—reasonably necessary to pursue a circumscribed investigation of the suspected criminal activity.
- “Whether, assuming that the initial phase of either respondent‘s detention was unduly extended, the illegality mandates suppression of a large shipment of marijuana which, because of its distinct odor, was discovered immediately thereafter in respondent Savage‘s vehicle.” Pet. for Cert. I.
“GENTLEMEN:
“The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, and of greater importance to the peace of the United States. Their questions depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land, and are often presented under circumstances which do not give a cognisance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the executive, as to occasion much embarrassment and difficulty to them. The President therefore would be much relieved if he found himself free to refer questions of this description to the opinions of the judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority insure the respect of all parties. He has therefore asked the attendance of such of the judges as could be collected in time for the occasion, to know, in the first place, their opinion, whether the public may, with propriety, be availed of their advice on these questions? And if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on. I have the honour to be with sentiments of the most perfect respect, gentlemen,
“Your most obedient and humble servant,
“THOS. JEFFERSON”
3 Correspondence and Public Papers of John Jay 486-487 (H. Johnston ed. 1891) (emphasis in original). Attached with the letter, on behalf of President Washington, were 29 questions. See 33 Writings of George Washington 15-19 (J. Fitzpatrick ed. 1940). Two days later, Chief Justice Jay and the Associate Justices penned the following to President Washington:“SIR:
“We have taken into consideration the letter written to us, by your direction, on the 18th inst., by the Secretary of State. The question, ‘whether the public may, with propriety, be availed of the advice of the judges on the questions alluded to,’ appears to us to be of much difficulty as well as importance. As it affects the judicial department, we feel a reluctance to decide it without the advice and participation of our absent brethren.
“The occasion which induced our being convened is doubtless urgent; of the degree of that urgency we cannot judge, and consequently cannot propose that the answer to this question be postponed until the sitting of the Supreme Court. We are not only disposed, but desirous, to promote the welfare of our country in every way that may consist with our official duties. We are pleased, sir, with every opportunity of manifesting our respect for you, and are solicitous to do whatever may be in our power to render your administration as easy and agreeable to yourself as it is to our country. If circumstances should forbid further delay, we will immediately resume the consideration of the question, and decide it.
“We have the honour to be, with perfect respect, your most obedient and most humble servants.” 3 Correspondence and Public Papers of John Jay 487-488 (Johnston ed. 1891).
President Washington promptly returned a reply:“Gentlemen: The circumstances, which had induced me to ask your counsel on certain legal questions interesting to the public, exist now as they did then; but I by no means press a decision, whereon you wish the advice and participation of your absent brethren. Whenever, therefore, their presence shall enable you to give it with more satisfaction to yourselves, I shall accept it with pleasure. With sentiments of high respect, I am, &c.” 33 Writings of George Washington 28 (J. Fitzpatrick ed. 1940).
Finally, Chief Justice Jay and the Associate Justices returned their response:“SIR:
“We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects
“We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.
“We have the honour to be, with perfect respect, sir, your most obedient and most humble servants.” 3 Correspondence and Public Papers of John Jay 488-489 (Johnston ed. 1891) (emphasis in original).