United States v. Armando Chaidez, Lilia Silva, and Manuel Chavira

RIPPLE, Circuit Judge,

dissenting.

Because I believe that the detention of Ms. Silva amounted to a de facto arrest, because such seizures require probable cause,1 and because the police did not have probable cause to seize Ms. Silva, I respectfully dissent.

Calling her “[t]he key” player, ante at 1199, because her consent to the search of the Weiland Road house led to the discovery of the drugs that justified the formal arrest of all three defendants, the panel majority focuses on the detention of Ms. Silva. Id. at 1196. In its view, prior to the discovery of the drugs, “the detention fell short of an arrest.” Id. at 1201. Characterizing the detention as “at the ‘outer edge’ of investigatory stops,” id. at 1198 (quoting United States v. Serna-Barreto, 842 F.2d 965, 968 (7th. Cir.1988)), but admitting that it was “more intrusive than an ordinary Terry stop,” id., the majority goes on to conclude that the detention was justified — despite the lack of probable cause— because the “agents behaved reasonably” under the circumstances. Id. at 1201.

1.

The panel majority describes the basic “reasonableness” criterion of the fourth amendment as “a continuum in which the necessary degree of confidence increases with the degree of intrusion.” Id. at 1197. There is a seductive symmetry to this “sliding scale” approach. However, it ignores the history of the fourth amendment with its emphasis on probable cause and the duty of an intermediate appellate court to follow the precedent of the Supreme Court.

The panel majority’s analysis is grounded in a serious misapprehension with respect to the fourth amendment’s requirement for the seizure of a person. The panel majority fails to recognize that the Supreme Court has reaffirmed, on several occasions, “the general rule that an official seizure of the person must be supported by probable cause, even if no formal arrest is made.” Michigan v. Summers, 452 U.S. 692, 696, 101 S.Ct. 2587, 2591, 69 L.Ed.2d 340 (1981). Indeed, in Summers, the Court noted that it previously had stressed in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), that broad exceptions to the probable cause requirement “ ‘would threaten to swallow the general rule that *1204Fourth Amendment seizures are “reasonable” only if based on probable cause.’ ” Summers, 452 U.S. at 697, 101 S.Ct. at 2591 (quoting Dunaway, 442 U.S. at 213, 99 S.Ct. at 2257). In Dunaway, the Court wrote:

The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. “The requirement of probable cause has roots that are deep in our history.” Henry v. United States, 361 U.S. 98, 100, [80 S.Ct. 168, 169-70, 4 L.Ed.2d 134] (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that “common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.” Id., at 101, [80 S.Ct. at 170] (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the “reasonableness” requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States [, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949)].

442 U.S. at 213, 99 S.Ct. at 2257.

In Summers, the Court recognized that the basic reasonableness standard of the fourth amendment required certain exceptions to the probable cause requirement. The first was Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Court recognized the “narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause.” Summers, 452 U.S. at 698, 101 S.Ct. at 2592. The Summers Court noted that Terry “approved a ‘frisk’ for weapons as a justifiable response to an officer’s reasonable belief that he was dealing with a possibly armed and dangerous suspect.” Id. Similarly, noted the Summers Court, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), “the Court relied on Terry to hold that an officer could forcibly stop a suspect to investigate an informant’s tip.” 452 U.S. at 698, 101 S.Ct. at 2592. In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court upheld vehicle stops based on articulable facts in an area along the international border. With respect to these exceptions, the Summers Court noted that “[t]hese cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.” 452 U.S. at 699, 101 S.Ct. at 2592-93 (emphasis supplied).

In determining whether such “special law enforcement interests” exist, id. at 700, 101 S.Ct. at 2593, “the character of the official intrusion and its justification” must be examined. Id. at 701, 101 S.Ct. at 2593. For instance, in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Court acknowledged that the standards for warrants for administrative searches ought to reflect the need for such regular health and safety inspections pursuant to “reasonable legislative or administrative standards.” Id. at 538, 87 S.Ct. at 1736. Inventory searches are justified by three distinct law enforcement needs: “the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976) (citations omitted). School searches on less than probable cause are grounded in “the substantial need of teachers and administrators for freedom to maintain order in the schools.” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985). Border searches “reflect longstanding con-*1205eern for the protection of the integrity of the border.” United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 3308-09, 87 L.Ed.2d 381 (1985); see also United States v. Martinez-Fuerte, 428 U.S. 543, 562, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. at 878-79, 95 S.Ct. at 2578-79. Similarly, government employee drug testing has been upheld because of the government’s “compelling interest in ensuring that front-line [drug] interdiction personnel are physically fit, and have unimpeachable integrity and judgment.” National Treasury Employers Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1393, 103 L.Ed.2d 685 (1989); see also Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989). The “‘special needs’ ” of law enforcement authorities supervising a probationer have also been found sufficient to permit a search of the probationer’s home on less than probable cause. Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. at 351, 105 S.Ct. at 748 (Blackmun, J., concurring in judgment)).

2.

In applying the Summers criteria for seizures based on less than probable cause, our focus must be on two criteria: 1) the degree to which the government has intruded on personal security; and 2) the existence of substantial “special law enforcement interests.” Summers, 452 U.S. at 699, 700-01, 101 S.Ct. at 2593-94. When this inquiry is applied to investigative stops, we follow a well-marked analytical path. We must make two inquiries: “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.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879; see also United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985).

This analytical approach makes clear that no justification for a dilution of the probable cause requirement exists here. “Believing that their surveillance operation had been compromised,” Order at 4, the authorities moved prematurely to apprehend the subjects of that surveillance. As they recognized, this seizure was the most expedient way to regain the ground they had lost. However, covering investigatory slip-ups is hardly the sort of justification that the Supreme Court had in mind in Summers when it noted that exceptions to the traditional probable cause requirement must be based on “special law enforcement interests.” 452 U.S. at 700, 101 S.Ct. at 2593.2 As the majority quite correctly notes, the purpose of questioning Ms. Silva “seemed as much to be to obtain consent to search the home as to inquire into possible wrongdoing.” Ante at 1199. With their cover destroyed, through their own negligence or by accident, the officers’ prospects of obtaining judicial approval for a warrant to enter the Weiland Road house were indeed dim. Only exploitation of the defendants’ seizure provided them with an avenue to complete their investigation immediately.

In terms of the degree of custody imposed, this situation is simply not the functional equivalent of an investigatory stop. If, as the First Circuit suggests in United States v. Quinn, 815 F.2d 153 (1st Cir.1987), the appropriate test “ ‘is how a reasonable man in the suspect’s position would have understood his situation[,]’ ” id. at 157 (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984)), it is hard to imagine a more stereotypical arrest situation than the one described here. No doubt an officer can withdraw a weapon from a holster without necessarily creating an arrest situa*1206tion.3 Blocking a car may not be, under all circumstances, an arrest.4 However, as the majority of the panel admits with great candor, this case involved much more restraint. The keys to both vehicles were taken (indeed, several officers left with the keys for the house immediately).5 The occupants were removed, searched, separated, and taken to police vehicles. Ms. Silva was then asked not about her activities but if she would consent to a search of the house. Indeed, the officers themselves apparently did not characterize the situation as an “investigatory” stop. Miranda warnings, usually not given in such a situation,6 were immediately read to Ms. Silva. Order at 5. The situation presented by this record cannot be characterized as on the “outer edge” of investigatory stops unless, contrary to the holdings of the Supreme Court and this court, those conceptual “outer edges” are ever-expanding.

3.

During its last three terms, this court has been importuned repeatedly to dilute the traditional standard of probable cause — long the standard both in this court and the Supreme Court for a significant intrusion upon the liberty of a person. Until today, while sympathetic to the pragmatic demands of modern day law enforcement, this court, faithful to its obligation as an intermediate appellate court, has resisted these opportunistic demands and followed Supreme Court precedent.7 See United States v. Ingrao, 897 F.2d 860, 862 (7th Cir.1990) (reaffirming this circuit’s adherence to the standards of Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), with respect to probable cause). Today this panel majority succumbs. Disregarding Supreme Court precedent, it abandons probable cause as the general *1207governing principle with respect to governmental seizures of persons. Probable cause, we now are told, is limited to situations in which the seizure involves a lengthy detention after full processing at a governmental facility. As the Dunaway Court predicted, the exceptions to probable cause now have devoured the rule. At bottom, the panel’s decision is an example of the “hard cases” where “immediate interests” (here preserving the convictions of drug dealers) “exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Northern Sec. Co. v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 48 L.Ed. 679 (1904) (Holmes, J., dissenting). Eventually, this case will be recognized for what it is — “a derelict in the stream of the law”8 reflecting the preoccupations of the moment. Yet, we must be mindful that “there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at ‘good ends.’ ” United Steelworkers v. Weber, 443 U.S. 193, 219, 99 S.Ct. 2721, 2735, 61 L.Ed.2d 480 (1979) (Burger, C.J., dissenting).

. I agree with the panel majority that, under the law of this circuit, our review is de novo. I do not know what the panel majority means when it says that the governing law "is in transition." Ante at 1196. Under the doctrines of precedent and stare decisis, this court applies established principles unless and until the full court determines that our former course was erroneous. See Circuit Rule 40(f). The disagreement of a particular judge or even several judges, see United States v. Malin, 908 F.2d 163, 169-70 (7th Cir.1990) (Easterbrook, J., joined by Posner, J., concurring), hardly justifies an announcement to bench and bar that well-settled principles may no longer control. Such a pronouncement is both premature and presumptuous.

. It is important to note that, while Llaguno v. Mingey, 763 F.2d 1560 (7th Cir.1985) (en banc), permitted the existence of exigent circumstances to be weighed in the probable cause determination, it explicitly noted that law enforcement authorities could not invoke this rationale when additional investigation could be undertaken without placing police or public at grave risk. Id. at 1566; see also BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.1986). Neither the government nor the panel majority makes — understandably — a claim that exigent circumstances existed here.

. See United States v. Ocampo, 890 F.2d 1363, 1369 (7th Cir.1989).

. See United States v. Quinn, 815 F.2d 153, 156 (1st Cir.1987); cf. United States v. Edwards, 885 F.2d 377, 381-82 n. 3 (7th Cir.1989) (because government did not challenge finding that seizure was an arrest, seizure characterized by " '[t]he physical blockage of defendant’s course, the shouted commands, the unambiguous display of weapons and the almost immediate application of handcuffs’” is presumed to be "a custodial arrest ab initio,” requiring probable cause) (quoting United States v. Edwards, No. 88-C-48-C, slip op. at 10 (W.D.Wis. July 23, 1988) (Magistrate’s Report and Recommendation)). But see United States v. Ceballos, 654 F.2d 177, 182 n. 7 (2d Cir.1981) (collecting cases holding such blocking constituted an arrest).

. See Suppression Hearing Tr. at 146, 164; cf. United States v. Boden, 854 F.2d 983, 993 (7th Cir.1988) ("investigatory stop never ripened into an arrest" when district court did not find that police had pointed guns at defendant, and found that police "never transported [defendant] from the premises or even placed him inside one of their vehicles”).

. See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (noting the "absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda ”); United States v. Glenna, 878 F.2d 967, 971 (7th Cir.1989) (failure to give Miranda warnings prior to seeking consent to retrieve registration papers from car during investigative stop did not violate defendant’s rights because consent to search is not testimonial); United States v. Boden, 854 F.2d 983, 995 (7th Cir.1988) (Miranda warnings not required in what was "at most an investigative stop”).

. North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156, 167, 94 S.Ct. 407, 414, 38 L.Ed.2d 379 (1973).

.This court has recognized consistently that, absent one of the recognized exceptions, the traditional probable cause requirement is applicable. Nevertheless, the panel majority attempts to undermine this well-established line of cases by declaring that it is wrong "to insist that all encounters must be either Terry stops or arrests.” Ante at 1198. This court, however, has frequently recognized the distinction between these two categories — and between their related constitutional requirements:

The first category [of police-citizen encounters] is an arrest, for which the Fourth Amendment requires that police have probable cause to believe a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment "seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime.

United States v. Johnson, 910 F.2d 1506, 1508 (1990) (citations omitted); see also United States v. Valencia, 913 F.2d 378, 382 (7th Cir.1990) ("If Valencia is correct that the police lacked probable cause, we must determine whether Valencia’s stop amounted to an arrest or a Terry stop.”); United States v. Jaramillo, 891 F.2d 620, 626 (7th Cir.1989) (courts must categorize seizures as either Terry stops, requiring only reasonable suspicion, or arrests, requiring probable cause), cert. denied, — U.S. -, 110 S.Ct. 1791, 108 L.Ed.2d 792 (1990).