# United States v. Raymond J. Place

> Court of Appeals for the Second Circuit · October 8, 1981 · 660 F.2d 44

URL: https://www.frixlaw.com/law-library/cases/9468412

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Raymond J. PLACE, Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 8, 1981
- **Citations:** 660 F.2d 44
- **Precedential status:** Published
- **Opinion:** Concurrence by Oakes
- **Judges:** Kaufman, Mansfield, Oakes
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

OAKES, Circuit Judge
(concurring):
I happily concur in the well reasoned opinion of Judge Mansfield which conforms, I believe, wholly to the Fourth Amendment law as so far enunciated by the Supreme Court.
In so concurring, however, I by no means retract or qualify the view first enunciated for this court in a border stop case, United States v. Barbera, 514 F.2d 294 (2d Cir. 1975), and further elaborated upon in my dissenting opinion in United States v. Vasquez, 612 F.2d 1338, 1352 (2d Cir. 1979), cert. denied, 447 U.S. 907 , 100 S.Ct. 2991 , 64 L.Ed.2d 857 (1980). That view, simply stated and deriving in large part from the views perhaps best expressed by Professor Anthony Amsterdam in his Holmes Lecture, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 367 (1974), that the Fourth Amendment should be read not atomistically, but regulatorily. Such a view leads one to conclude that in cases such as the so-called airport stop or search case here, sidestepping strict requirements of probable cause in warrantless searches or seizures should be permissible only if, as, and when the search or stop is made pursuant to duly adopted, proper, nondiscriminatory, and reasonable rules or regulations adopted by the appropriate governmental authority and subjected to appropriate judicial review. Absent such rules or regulations we are so much in the realm of the individual law officer’s discretionary, subjective sense *54 of suspicion as to permit of the arbitrariness and unbridled official caprice that led our Forebears, as Judge Mansfield suggests, to adopt the Fourth Amendment. Until better advised by higher Authority, I will continue to take what some would call a narrow view of extension of the “exception” to the general rule of probable cause set forth in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). I am satisfied that Judge Mansfield has taken a similar view with conventional case support, and I write this concurrence only to refer to this somewhat less conventional view which nevertheless continues to find what seems to me like a receptive ear in some of the expressions in more recent Supreme Court opinions. See, e. g., Delaware v. Prouse, 440 U.S. 648, 661 , 99 S.Ct. 1391, 1400 , 59 L.Ed.2d 660 (1979):
To insist upon neither an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . . ” Terry v. Ohio, supra, 392 U.S. at 22 , 88 S.Ct. [1868] at 1880.
(Emphasis added.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468412. Public record. Not legal advice.