Cupp v. Murphy

Mr. Justice Marshall,

concurring.

I join the opinion of my Brother Stewart.

Murphy’s freedom of movement was unquestionably limited when the police did not acquiesce in his refusal to permit them to take scrapings from his fingernails. But that detention, although a seizure of the person protected by the Fourth Amendment, did not amount to an arrest under Oregon law. See Ore. Rev. Stat. § 133.210. The police, understanding this, did not, for example, take Murphy promptly before a magistrate after this detention, as state law requires after an arrest. Id., § 133.550. 1 As we have said before, however, “It is quite plain that the Fourth Amendment governs 'seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime— 'arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U. S. 1, 16 (1968). See also id., at 19 n. 16, 26; Sibron v. New York, 392 U. S. 40, 67 (1968).

Murphy argues, however, that the detention was unlawful because the police did not satisfy “the general requirement that the authorization of a judicial officer be obtained in advance of detention,” Davis v. Mississippi, 394 U. S. 721, 728 (1969). See also Terry v. Ohio, *298 supra, at 20. But until the officer saw a dark spot under Murphy's thumbnail, and remembered that he had seen lacerations on the throat of the deceased, he had no reason to detain Murphy for the limited purpose of taking fingernail scrapings. Then, when he brought to Murphy’s attention his interest in taking such scrapings, he was dealing with a suspect alerted to the desire of the police to inspect his fingernails. At that point, there was no way to preserve the status quo while a warrant was sought, and there was good reason to believe that Murphy might attempt to alter the status quo unless he were prevented from doing so. The police could not assure the preservation of the evidence simply by placing Murphy under close surveillance, because of the nature of the evidence. And, for purposes of Fourth Amendment analysis, detaining him while a warrant was sought would have been as much a seizure as detaining him while his fingernails were scraped. If the Fourth Amendment permits a stop-and-frisk when the police have specific articulable facts from which they may infer that a person, who they suspect is about to commit a crime, is armed and dangerous, Terry v. Ohio, supra, it also permits detention, where the police have probable cause to arrest, 2 to take fingernail scrapings in the circumstances of this case. 3

Murphy’s argument is, of course, a troublesome one, and, if the police had done more than take fingernail *299 scrapings, I would be inclined to hold the search illegal. For, as a general principle of the law of the Fourth Amendment, the scope of a search must be strictly limited in terms of the circumstances that justify the search. See, e. g., Terry v. Ohio, supra, at 19-20 ; Chimel v. California, 395 U. S. 752 (1969). When a person is detained, but not arrested, the detention must be justified by particularized police interests other than a desire to initiate a criminal proceeding against the person they detain. The police therefore cannot do more than investigate the circumstances that occasion the detention. In this case, the police limited their intrusion to precisely the area that led them to restrict Murphy's freedom; he was not searched as extensively as he might have been had an arrest occurred. Indeed, in my view, the Fourth Amendment would have barred a more extensive search, for the police had no reason at all to believe that Murphy had on his person more evidence relating to the crime, or, in light of the fact that this case involved a strangulation, a weapon that he might use at the station house.

I realize that exceptions to the warrant requirement may be established because of "powerful hydraulic pressures . . . that bear heavily on the Court to water down constitutional guarantees,” Terry v. Ohio, supra, at 39 (Douglas, J., dissenting), and that those same pressures may lead to later expansion of the exceptions beyond the narrow confines of the cases in which they are established, Adams v. Williams, 407 U. S. 143, 161-162 (1972) (Marshall, J., dissenting). But I cannot say that, in the precise circumstances of this case, the police violated the Fourth Amendment in detaining Murphy for the limited purpose of scraping his fingernails. I emphasize, as does the opinion of the Court, that the search conducted incident to this detention was extremely narrow in scope, and that its scope was tied closely to the reasons justify *300 ing the detention. On this understanding, I join the opinion of the Court.

Thus this case does not require us to determine whether the police were required to obtain a warrant for Murphy’s arrest at the relevant time. Cf. Jones v. United States, 357 U. S. 493, 499-500 (1958); Coolidge v. New Hampshire, 403 U. S. 443, 477-481 (1971).

The Court of Appeals assumed that there was probable cause to arrest, and I proceed on that assumption. I agree with Mr. Justice White that the question of probable cause to arrest is open on remand.

Mr. Justice Douglas suggests that the taking of fingernail scrapings might violate the Fifth Amendment privilege against self-incrimination. In my view, however, that privilege is confined to situations in which the evidence could be secured by the State only with the defendant’s “affirmative cooperation,” United States v. Dionisio, 410 U. S. 1, 31 (1973) (Marshall, J., dissenting).