Florida v. Royer

Justice Brennan,

concurring in the result.

In this case the Florida District Court of Appeal’s decision rested on its holding that at some point after the initial stop the officers’ seizure of Royer matured into an arrest unsupported by probable cause. 389 So. 2d 1007, 1019 (1980) (en banc). Royer’s consent to the search of his suitcases, therefore, was tainted by the illegal arrest. Id., at 1019-1020 . The District Court of Appeal’s conclusion is amply supported by the record and by our decision in Dunaway v. New York, 442 U. S. 200 (1979). I therefore concur that the District Court of Appeal’s judgment should be affirmed. But the plurality reaches certain issues that it clearly need not reach to support an affirmance.

To the extent that the plurality endorses the legality of the officers’ initial stop of Royer, see post, at 523, n. 3 (Rehnquist, J., dissenting), it was wholly unnecessary to reach that question. For even assuming the legality of the initial stop, the plurality correctly holds, and I agree, that the officers’ subsequent actions clearly exceeded the permissible bounds of a Terry “investigative” stop. Ante, at 501, 507. “[A]ny ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, supra, at 213 . Thus, most of the plurality’s discussion of the permissible scope of Terry investigative stops is also unnecessary to the decision.

I emphasize that Terry v. Ohio, 392 U. S. 1 (1968), was a very limited decision that expressly declined to address the “constitutional propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or *510 interrogation.” Id., at 19, n. 16 . Terry simply held that under certain carefully defined circumstances a police officer “is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault him.” Id., at 30 . Adams v. Williams, 407 U. S. 143 (1972), endorsed “brief” investigative stops based on reasonable suspicion, id., at 145-146 , but the search for weapons upheld in that case was very limited and was based on Terry’s safety rationale. 407 U. S., at 146 . In Adams , we stated that the purpose of the “limited” weapons search was “not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .” Ibid. In United States v. Brignoni-Ponce, 422 U. S. 873 (1975), we held that “when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.” Id., at 881 . We based this holding on the importance of the governmental interest in stemming the flow of illegal aliens, on the minimal intrusion of a brief stop, and on the absence of practical alternatives for policing the border. Ibid. We noted the limited holdings of Terry and Adams and while authorizing the police to “question the driver and passengers about their citizenship and immigration status, and . . . ask them to explain suspicious circumstances,” we expressly stated that “any further detention or search must be based on consent or probable cause.” 422 U. S., at 881-882 . See also Dunaway v. New York, supra, at 208-212 (discussing the narrow scope of Terry and its progeny).

The scope of a Terry-type “investigative” stop and any attendant search must be extremely limited or the Terry exception would “swallow the general rule that Fourth Amendment seizures [and searches] are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, supra, at 213 . In my view, any suggestion that the Terry reasonable-suspicion *511 standard justifies anything but the briefest of detentions or the most limited of searches finds no support in the Terry line of cases. *

In any event, I dissent from the plurality’s view that the initial stop of Royer was legal. For plainly Royer was “seized” for purposes of the Fourth Amendment when the officers asked him to produce his driver’s license and airline ticket. Terry stated that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U. S.v.at 16. Although I agree that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons,” id., at 19, n. 16 , and that policemen may approach citizens on the street and ask them questions without “seizing” them for purposes of the Fourth Amendment, once an officer has identified himself and asked a traveler for identification and his airline ticket, the traveler has been “seized” within the meaning of the Fourth Amendment. By identifying themselves and asking for Royer’s airline ticket and driver’s license the officers, as a practical matter, engaged in a “show of authority” and “restrained *512 [Royer’s] liberty.” Ibid. It is simply wrong to suggest that a traveler feels free to walk away when he has been approached by individuals who have identified themselves as police officers and asked for, and received, his airline ticket and driver’s license.

Before Terry , only “seizures” of persons based on probable cause were held to satisfy the Fourth Amendment. Dunaway v. New York, 442 U. S., at 208-209 . As we stated in United States v. Brignoni-Ponce, supra, however, Terry and Adams “establish that in appropriate circumstances the Fourth Amendment allows a properly limited ‘search’ or ‘seizure’ on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime.” 422 U. S., at 881 . But to justify such a seizure an officer must have a reasonable suspicion of criminal activity based on “specific and articulable facts . . . [and] rational inferences from those facts . . . .” Terry v. Ohio, 392 U. S., at 21 . See also Brown v. Texas, 443 U. S. 47, 51 (1979). In this case, the officers decided to approach Royer because he was carrying American Tourister luggage, which appeared to be heavy; he was young; he was casually dressed; he appeared to be pale and nervous and was looking around at other people; he paid for his airline ticket in cash with a large number of bills; and he did not completely fill out the identification tags for his luggage, which was checked to New York. See ante, at 493, n. 2. These facts clearly are not sufficient to provide the reasonable suspicion of criminal activity necessary to justify the officers’ subsequent seizure of Royer. Indeed, considered individually or collectively, they are perfectly consistent with innocent behavior and cannot possibly give rise to any inference supporting a reasonable suspicion of criminal activity. The officers’ seizure of Royer, therefore, was illegal.

Although I recognize that the traffic in illicit drugs is a matter of pressing national concern, that cannot excuse this Court from exercising its unflagging duty to strike down official activity that exceeds the confines of the Constitution. *513 In discussing the Fourth Amendment in Coolidge v. New Hampshire, 403 U. S. 443 (1971), Justice Stewart stated: “In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.” Id., at 455 (plurality opinion). We must not allow our zeal for effective law enforcement to blind us to the peril to our free society that lies in this Court’s disregard of the protections afforded by the Fourth Amendment.

I interpret the plurality’s requirement that the investigative methods employed pursuant to a Terry stop be “the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time,” ante, at 500, to mean that the availability of a less intrusive means may make an otherwise reasonable stop unreasonable. I do not interpret it to mean that the absence of a less intrusive means can make an otherwise unreasonable stop reasonable.

In addition, contrary to the plurality’s apparent suggestion, I am not at all certain that the use of trained narcotics dogs constitutes a less intrusive means of conducting a lawful Terry investigative stop. See ante, at 505. Such a suggestion finds no support in our cases and any question concerning the use of trained dogs to detect the presence of controlled substances in luggage is clearly not before us.

In any event, the relevance of a least intrusive means requirement within the context of a Terry investigative stop is not clear to me. As I have discussed, a lawful stop must be so strictly limited that it is difficult to conceive of a less intrusive means that would be effective to accomplish the purpose of the stop.