United States v. Sharpe

Justice Marshall,

concurring in the judgment.

I join the result in this case because only the evasive actions of the defendants here turned what otherwise would *689have been a permissibly brief Terry stop into the prolonged encounter now at issue. I write separately, however, because in my view the Court understates the importance of Terry’s brevity requirement to the constitutionality of Terry stops.

I

Terry v. Ohio, 392 U. S. 1, 27 (1968), recognized a “narrowly drawn” exception to the probable-cause requirement of the Fourth Amendment for certain seizures of the person that do not rise to the level of full arrests. Two justifications supported this “major development in Fourth Amendment jurisprudence.” Pennslyvania v. Mimms, 434 U. S. 106, 115 (1977) (Stevens, J., dissenting). First, a legitimate Terry stop — brief and narrowly circumscribed — was said to involve a “wholly different kind of intrusion upon individual freedom” than a traditional arrest. Terry, 392 U. S., at 26. Second, under some circumstances, the government’s interest in preventing imminent criminal activity could be substantial enough to outweigh the still-serious privacy interests implicated by a limited Terry stop. Id., at 27. Thus, when the intrusion on the individual is minimal, and when law enforcement interests outweigh the privacy interests infringed in a Terry encounter, a stop based on objectively reasonable and articulable suspicions, rather than upon probable cause, is consistent with the Fourth Amendment.1

*690That Terry was justified in terms of these two rationales was made clear in subsequent cases. For example, in Dunaway v. New York, 442 U. S. 200, 210 (1979), we explained that Terry rested on two principles:

“First, it defined a special category of Fourth Amendment ‘seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth 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 Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.” See also id., at 704 (“The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation”). Even a stop that lasts no longer than necessary to complete the investigation for which the stop was made may amount to an illegal arrest if the stop is more than “minimally intrusive.” The stop must first be found not unduly intrusive before any balancing of the government’s interest against the individual’s becomes appropriate. See also Michigan v. Summers, 452 U. S. 692, 697-699 (1981).

*691To those who rank zealous law enforcement above all other values, it may be tempting to divorce Terry from its rationales and merge the two prongs of Terry into the single requirement that the police act reasonably under all the circumstances when they stop and investigate on less than probable cause. Cf. Posner, Rethinking the Fourth Amendment, 1981 S. Ct. Rev. 49, 71. As long as the police are acting diligently to complete their investigation, it is difficult to maintain that law enforcement goals would better be served by releasing an individual after a brief stop than by continuing to detain him for as long as necessary to discover whether probable cause can be established. But while the preservation of order is important to any society, the “needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” Almeida-Sanchez v. United States, 413 U. S. 266, 273 (1973). Terry must be justified, not because it makes law enforcement easier, but because a Terry stop does not constitute the sort of arrest that the Constitution requires be made only upon probable cause.

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 Fourth Amendment in the absence of probable cause. See Dunaway, supra. Legitimate law enforcement interests that, do not rise to the level of probable cause simply cannot turn an overly intrusive seizure into a constitutionally permissible one.

*692In my view, the length of the stop in and of itself may make the stop sufficiently intrusive to be unjustifiable in the absence of probable cause to arrest.2 Terry “stops” are justified, in part, because they are stops, rather than prolonged seizures. “[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.” 1 W. LaFave & J. Israel, Criminal Procedure §3.8, p. 297 (1984).

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 *693(questioning legality of “prolonged” detention). A Terry stop valid in its inception may become unduly intrusive on personal liberty and privacy simply by lasting too long. That remains true even if valid law enforcement objectives account for the length of the seizure.

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 are not brief yields the sort of objective standards mandated by our Fourth Amendment precedents, standards that would avoid placing courts in the awkward position of second-guessing police as to what constitutes reasonable police practice.6 We have recognized that the methods employed in a Terry stop “should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. *694Royer, supra, at 500.6 Yet in the absence of a per se requirement that stops be brief, defining what means are “least intrusive” is a virtually unmanageable and unbounded task. Whether the police have acted with due diligence is a function not just of how quickly they completed their investigation, but of an almost limitless set of alternative ways in which the investigation might have been completed. For example, in this case the Court posits that the officers acted with due diligence, but they might have acted with more diligence had Cooke summoned two rather than one highway patrolman to assist him, or had Cooke, who had the requisite “training and experience,” stopped the pickup truck — the vehicle thought to be carrying the marihuana. See generally post, at 712-716 (Brennan, J., dissenting). And if due diligence takes as fixed the amount of resources a community is willing to devote to law enforcement, officials in one community may act with due diligence in holding an individual at an airport for 35 minutes while waiting for the sole narcotics detection dog they possess, while officials who have several dogs readily available may be dilatory in prolonging an airport stop to even 10 minutes.

Constitutional rights should not vary in this manner. Yet in the absence of a brevity standard that is independent of *695the actions or needs of the police, that variance is one of two inescapable results. The other is that the Court will have to take seriously its requirement that the police act with due diligence, which will require the Court to inject itself into such issues as whether this or that alternative investigative method ought to have been employed.7 Cf. United States v. Martinez-Fuerte, 428 U. S. 543, 565 (1976) (One purpose of the warrant requirement “is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure”). The better and judicially more manageable rule would be a per se requirement that Terry stops be brief, for that rule would avoid the Court’s measuring police conduct according to a virtually standardless yardstick.

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 *696should have avoided; the finding that such a “balance” has been struck improperly casts a certain moral opprobrium on official conduct. A brevity requirement makes clear that the Constitution imposes certain limitations on police powers no matter how reasonably those powers have been exercised. “[H]air-splitting distinctions that currently plague our Fourth Amendment jurisprudence” serve nobody’s interest, New York v. Quarles, 467 U. S. 649, 664 (1984) (O’Connor, J., concurring in part and dissenting in part), but measuring the legitimacy of a Terry stop by the reasonableness and diligence of the official’s actions, rather than by the intrusiveness of the stop, would proliferate such distinctions. Maintaining the clarity of Terry’s brevity requirement will instead breed respect for the law among both police and citizens.

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.

r — i

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 *697“temporary.” Those stops upheld in these cases all lasted no more than a few minutes before probable cause was established.8

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).

*698Difficult questions will no doubt be presented when during these few minutes an officer learns enough to increase his suspicions but not enough to establish probable cause. But whatever the proper resolution of this problem, the very-least that ought to be true of Terry’s brevity requirement is that, if the initial encounter provides no greater grounds for suspicion than existed before the stop, the individual must be free to leave after the few minutes permitted for the initial encounter. Such a clear rule would provide officials with necessary and desirable certainty and would adequately protect the important liberty and privacy interests upon which Terry stops infringe.

Ill

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 defacto arrest, see ante, at 680, 682-688, 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 unneccessary 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 *699moved his Pontiac to the side of the road. Except for Savage’s maneuvers, only a short and certainly permissible pre-arrest detention would likely have taken place.” Ante, at 687-688. With that holding I agree.11 Had Savage pulled over when signalled to, as did Sharpe, Savage and Sharpe both would have been subjected to only a permissibly brief Terry stop before the odor of the marihuana would have given the officers probable cause to arrest.12 Once Cooke caught back up with Savage, only a few minutes passed before Cooke smelled the marihuana. During these few brief minutes, Savage was subjected to no more than the identification request and minimal questioning, designed to confirm or dispel the reasonable suspicion causing the stop, that is legitimate under Terry. While a 20-minute stop would, under most circumstances, be longer than the limited intrusion entailed by the brief stop that Terry allows, I believe such a stop is permissible when a suspect’s own actions are the primary cause for prolonging an encounter *700beyond the bounds to which Terry’s brevity requirement ordinarily limits such stops. Nothing more is necessary to decide this case, and any further suggestions in the Court’s opinion I find unwarranted, confusing, and potentially corrosive of the principles upon which Terry is grounded.

> hH

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 Fourth Amendment campaigns.

Moreover, aside from the fact that the reasonable-suspicion issue was not presented, briefed, or argued by the parties, *701the Court’s handling of this issue reveals the defects of engaging in an airy factual inquiry unaided by full lower court review. First, the Court ignores relevant evidence relied on by the District Court when the latter concluded that, although the question was “real close,” the initial stop was lawful; for example, the Court does not refer to evidence before the District Court regarding how common it would have been for a pickup truck like that driven by Savage to be found in this area. See Defendant’s Exhibit 10. Perhaps a stop of a particular type of truck would be reasonable in some areas and not in others, which is why evidence was submitted on the number of such trucks in this area; but in its haste to validate the actions here, the Court seems to suggest that pickup trucks with camper shells are always, anywhere items engendering reasonable suspicion. Second, the Court makes ill-considered inferences to concoct those few facts upon which it does rely to uphold the initial stop. The Court first asserts that both drivers “started speeding as soon as Officer Thrasher began following them in his marked car,” ante, at 683, n. 3, and then suggests that respondents sped because they noticed Thrasher and were seeking to evade him. Thrasher, however, had joined the caravan at least one minute before respondents began speeding. 4 Record 140-141. In addition, respondents did not speed until they left the highway, at which point they continued at their highway speed of 55 to 60 miles an hour through a 3-mile campground road for which the posted limit was 35 miles an hour. Any implication that respondents sped because they noticed Thrasher or to “evade” the officers is unsupported by common sense or by the record. Sharpe and Savage hardly could have expected to “evade” the police on a 3-mile closed loop through a campground, and if the Court’s speculation that they noticed Thrasher’s car is correct, one certainly doubts they would have, intentionally attracted attention to themselves by beginning to speed. Finally, the District Court’s view on the reasonable-suspicion issue may well have *702been colored by the fact that “several” other of these essentially profile stops were made that morning, including stops of four or five four-wheel drive vehicles, and yet no other drug arrests were made. Id., at 127-128. If after two days and 450 pages of testimony the District Court concluded that the reasonableness and articulability of the officers’ suspicion presented a “close question,” and if the Court today has less factual information before it and must rely on questionable inferences to elicit even those few facts upon which it does rely, one would hope the Court would act with greater restraint than to speculate whether the “assumption” of reasonable suspicion is “abundantly” supported by the record. But any such hope would evidently be merely idle fancy with respect to a Court so anxious to address an unpresented issue that it blithely hurdles over the jurisdictional and jurisprudential principles that ought to stand in its way.

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.

The following special law enforcement needs have been found sufficient to justify a minimally intrusive stop based on reasonable suspicion: protective weapons searches, Terry, Adams v. Williams, 407 U. S. 148 (1972); border searches for illegal aliens, United States v. Cortez, 449 U. S. 411 (1981), United States v. Brignoni-Ponce, 422 U. S. 873 (1975); airport searches for suspected drug trafficking, Florida v. Royer, 460 U. S. 491 (1983), United States v. Place, 462 U. S. 696 (1983), United States v. Mendenhall, 446 U. S. 544 (1980); stops to investigate past felonies, United States v. Hensley, 469 U. S. 221 (1985). In Royer, we referred to stops to investigate “illegal transactions in drugs or other serious crime.” 460 U. S., at 499. We have never suggested that all law enforcement objectives, such as the investigation of possessory offenses, outweigh the individual interests infringed upon. Cf. Brinegar v. United States, *690338 U. S. 160,183 (1949) (Jackson, J., dissenting) (“[Jludicial exceptions to the Fourth Amendment. . . should depend somewhat upon the gravity of the offense”). Respondents in this case were suspected of offloading large quantities of drugs from vessels that had recently arrived at the coast, an activity that, under Place, triggers sufficiently special and important law enforcement interests to justify a Terry stop.

A stop can also be unduly intrusive if the individual is moved or asked to move more than a short distance, if a search is more extensive than necessary to protect the police from an objective fear of danger, or if tactics amounting to custodial interrogation are used. See Dunaway v. New York, 442 U. S. 200 (1979); Kolender v. Lawson, 461 U. S. 352, 365 (1983) (Brennan, J., concurring).

The majority suggests that the 90-minute detention in Place was held too long only because the police had not acted diligently enough. In my view, the statements quoted in text adequately demonstrate that the length of the detention “alone” was “sufficient” to invalidate the seizure.

We recognized a similar point in Dunaway: “A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” 442 U. S., at 213-214.

Cf. Dunaway, swpra, at 219-220 (White, J., concurring) (rules defining appropriate Terry stops must be fashioned on categorical basis, rather than resolved “in an ad hoc, case-by-case fashion by individual police officers”).

At least we have until today. The language from Cady v. Dombrowski, 413 U. S. 433, 447 (1973), quoted ante, at 687, to the effect that full-scale Fourth Amendment searches may be reasonable even if not accomplished in the least intrusive means is of course wholly inconsistent with the holding of Royer. Cady, quite obviously, has nothing to do with the Terry stop issue here; there the question was whether a search that the Court found legitimate had to be accomplished in any particular way, while here the issue is whether the police have intruded on an individual so substantially as to need probable cause. I assume Royer’s holding remains the law on this point, and that the Court’s mere quotation out of context of Cady, unsupported by any argument or reasoned discussion, is not meant to overrule Royer. Legal reasoning hardly consists of finding isolated sentences in wholly different contexts and using them to overrule sub silentio prior holdings.

It is clear from the Court’s distaste for the task of “second-guessing” the police, ante, at 686, and from Justice Brennan’s critique of the cursory way in which the Court analyzes the investigative methods employed in this case, that the Court has little intention of choosing this option and taking seriously the requirement that the police act with “due diligence.” That demonstrated lack of will makes a strict brevity requirement all the more important.

In Michigan v. Summers, 452 U. S. 692, 700, n. 12 (1981), the Court noted that, under some circumstances, a valid stop could last longer “than the brief time period involved in Terry and Adams.” As my concurrence today indicates, I agree that the length of the actual stop in Terry does not establish a firm outer limit beyond which no valid stop can ever go. However, nothing in the record in Summers revealed how long the stop there took, 452 U. S., at 711, n. 3 (Stewart, J., dissenting), and this statement from Summers must be read against the peculiarly unintrusive setting of a stop that took place within the defendant’s own residence.

See n. 11, infra.

See ALI, Model Code of Pre-Arraignment Procedure § 110.2(1) (1975).

The District Court stated that the stop “took a little longer than it should have taken. They created their own problem.” 4 Record 221. Immediately after making this statement, the District Court ruled the stop lawful. Id., at 221-222. From the context in which the statement was made — a direct response to the Government’s argument that “each case has to more or less stand on its own facts” and that here the defendants were the cause of the overly lengthy detention — I have little doubt that the “they” referred to was the defendants. Because the District Court issued no express findings of fact, this statement, like other statements relied on to define the underlying facts, must be read in the light most faithful to the context in which it was uttered.

No question is presented as to whether odor that creates probable cause also justifies a warrantless search. See Johnson v. United States, 333 U. S. 10, 13 (1948) (“[Ojdors alone do not authorize a search without warrant”). That issue was not decided in United States v. Johns, 469 U. S. 478, 486 (1985), for there the warrantless search was justified by the automobile exception created in United States v. Ross, 456 U. S. 798 (1982). I of course disagree with the theory of Ross, see id., at 827 (Marshall, J., dissenting), but I concur in the judgment here because no question is presented as to the validity of the warrantless search and seizure of the burlap-covered bales removed from the truck driven by Savage.