OCTOBER TERM, 1992
Syllabus
MINNESOTA
v. DICKERSON
CERTIORARI TO THE SUPREME COURT OF MINNESOTA No. 91-2019. Argued
March 3, 1993-Decided June 7, 1993
Based upon respondent's seemingly evasive actions when
approached by police officers and the fact that he had just left a
building known for cocaine traffic, the officers decided to
investigate further and ordered respondent to submit to a patdown
search. The search revealed no weapons, but the officer conducting
it testified that he felt a small lump in respondent's jacket
pocket, believed it to be a lump of crack cocaine upon examining it
with his fingers, and then reached into the pocket and retrieved a
small bag of cocaine. The state trial court denied respondent's
motion to suppress the cocaine, and he was found guilty of
possession of a controlled substance. The Minnesota Court of
Appeals reversed. In affirming, the State Supreme Court held that
both the stop and the frisk of respondent were valid under
Terry v.
Ohio, 392 U. S. 1, but found the seizure of
the cocaine to be unconstitutional. Refusing to enlarge the
"plain-view" exception to the Fourth Amendment's warrant
requirement, the court appeared to adopt a categorical rule barring
the seizure of any contraband detected by an officer through the
sense of touch during a patdown search. The court further noted
that, even if it recognized such a "plain-feel" exception, the
search in this case would not qualify because it went far beyond
what is permissible under
Terry.
Held:
1. The police may seize nonthreatening contraband detected
through the sense of touch during a protective patdown search of
the sort permitted by
Terry, so long as the search stays
within the bounds marked by
Terry. pp.372-377.
(a)
Terry permits a brief stop of a person whose
suspicious conduct leads an officer to conclude in light of his
experience that criminal activity may be afoot, and a patdown
search of the person for weapons when the officer is justified in
believing that the person may be armed and presently dangerous.
This protective search-permitted without a warrant and on the basis
of reasonable suspicion less than probable cause-is not meant to
discover evidence of crime, but must be strictly limited to that
which is necessary for the discovery of weapons which might be used
to harm the officer or others. If the protective search goes beyond
what is necessary to determine if the suspect is armed, it
367
is no longer valid under
Terry and its fruits will be
suppressed.
Sibron v.
New York, 392 U. S. 40, 65-66. pp.
372-373.
(b) In
Michigan v.
Long, 463 U. S. 1032, 1050,
the seizure of contraband other than weapons during a lawful
Terry search was justified by reference to the Court's cases
under the "plain-view" doctrine. That doctrine-which permits police
to seize an object without a warrant if they are lawfully in a
position to view it, if its incriminating character is immediately
apparent, and if they have a lawful right of access to it-has an
obvious application by analogy to cases in which an officer
discovers contraband through the sense of touch during an otherwise
lawful search. Thus, if an officer lawfully pats down a suspect's
outer clothing and feels an object whose contour or mass makes its
identity immediately apparent, there has been no invasion of the
suspect's privacy beyond that already authorized by the officer's
search for weapons. Cf.,
e. g., Illinois v.
Andreas,
463 U. S. 765,
771. If the object is contraband, its warrantless seizure would be
justified by the realization that resort to a neutral magistrate
under such circumstances would be impracticable and would do little
to promote the Fourth Amendment's objectives. Cf.,
e. g.,
Arizona v.
Hicks, 480 U. S. 321, 326-327.
Pp. 374-377.
2. Application of the foregoing principles to the facts of this
case demonstrates that the officer who conducted the search was not
acting within the lawful bounds marked by
Terry at the time
he gained probable cause to believe that the lump in respondent's
jacket was contraband. Under the State Supreme Court's
interpretation of the record, the officer never thought that the
lump was a weapon, but did not immediately recognize it as cocaine.
Rather, he determined that it was contraband only after he
squeezed, slid, and otherwise manipulated the pocket's contents.
While
Terry entitled him to place his hands on respondent's
jacket and to feel the lump in the pocket, his continued
exploration of the pocket after he concluded that it contained no
weapon was unrelated to the sole justification for the search under
Terry. Because this further search was constitutionally
invalid, the seizure of the cocaine that followed is likewise
unconstitutional. Pp. 377-379.
481 N. W. 2d 840, affirmed.
WHITE, J., delivered the opinion for a unanimous Court with
respect to Parts I and II, and the opinion of the Court with
respect to Parts III and IV, in which STEVENS, O'CONNOR, SCALIA,
KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed a concurring
opinion,
post, p. 379. REHNQUIST, C. J., filed an opinion
concurring in part and dissenting in part, in which BLACKMUN and
THOMAS, JJ., joined,
post, p. 383.
368
Michael O.
Freeman argued the cause for
petitioner.
With him on the briefs were
Hubert H. Humphrey III,
Attorney General of Minnesota,
Patrick C.
Diamond,
and
Beverly J.
Wolfe.
Richard H. Seamon argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Starr, Assistant Attorney General Mueller, Deputy Solicitor
General Bryson, and Kathleen A. Felton.
Peter W Gorman argued the cause for respondent. With him on the
brief were William R. Kennedy, David H. Knutson, Warren R.
Sagstuen, and Renee J. Bergeron. *
JUSTICE WHITE delivered the opinion of the Court.
In this case, we consider whether the Fourth Amendment permits
the seizure of contraband detected through a police officer's sense
of touch during a protective patdown search.
I
On the evening of November 9, 1989, two Minneapolis police
officers were patrolling an area on the city's north side in a
marked squad car. At about 8:15 p.m., one of the officers observed
respondent leaving a 12-unit apartment building on Morgan Avenue
North. The officer, having previously responded to complaints of
drug sales in the building's hallways and having executed several
search warrants on the premises, considered the building to be a
notorious "crack house." According to testimony credited by the
trial court, respondent began walking toward the police but, upon
spot-
* Fred E. Inbau, Wayne W Schmidt, James P. Manak, and Robert
H.
Macy filed a brief for Americans for Effective Law
Enforcement, Inc., et al. urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
John F.
Savarese, Steven R. Shapiro, and
Deborah Gilman; and
for the National Association of Criminal Defense Lawyers by
David M. Eldridge.
369
ting the squad car and making eye contact with one of the
officers, abruptly halted and began walking in the opposite
direction. His suspicion aroused, this officer watched as
respondent turned and entered an alley on the other side of the
apartment building. Based upon respondent's seemingly evasive
actions and the fact that he had just left a building known for
cocaine traffic, the officers decided to stop respondent and
investigate further.
The officers pulled their squad car into the alley and ordered
respondent to stop and submit to a patdown search. The search
revealed no weapons, but the officer conducting the search did take
an interest in a small lump in respondent's nylon jacket. The
officer later testified:
"[A]s I pat-searched the front of his body, I felt a lump, a
small lump, in the front pocket. I examined it with my fingers and
it slid and it felt to be a lump of crack cocaine in cellophane."
Tr. 9 (Feb. 20, 1990).
The officer then reached into respondent's pocket and retrieved
a small plastic bag containing one fifth of one gram of crack
cocaine. Respondent was arrested and charged in Hennepin County
District Court with possession of a controlled substance.
Before trial, respondent moved to suppress the cocaine.
The trial court first concluded that the officers were justified
under
Terry v.
Ohio, 392 U. S. 1 (1968), in
stopping respondent to investigate whether he might be engaged in
criminal activity. The court further found that the officers were
justified in frisking respondent to ensure that he was not carrying
a weapon. Finally, analogizing to the "plain-view" doctrine, under
which officers may make a warrantless seizure of contraband found
in plain view during a lawful search for other items, the trial
court ruled that the officers' seizure of the cocaine did not
violate the Fourth Amendment:
"To this Court there is no distinction as to which sensory
perception the officer uses to conclude that the ma-
370
terial is contraband. An experienced officer may rely upon his
sense of smell in DWI stops or in recognizing the smell of burning
marijuana in an automobile. The sound of a shotgun being racked
would clearly support certain reactions by an officer. The sense of
touch, grounded in experience and training, is as reliable as
perceptions drawn from other senses. 'Plain feel,' therefore, is no
different than plain view and will equally support the seizure
here." App. to Pet. for Cert. C-5.
His suppression motion having failed, respondent proceeded to
trial and was found guilty.
On appeal, the Minnesota Court of Appeals reversed.
The court agreed with the trial court that the investigative
stop and protective patdown search of respondent were lawful under
Terry because the officers had a reasonable belief based on
specific and articulable facts that respondent was engaged in
criminal behavior and that he might be armed and dangerous. The
court concluded, however, that the officers had overstepped the
bounds allowed by
Terry in seizing the cocaine. In doing so,
the Court of Appeals "decline[d] to adopt the plain feel exception"
to the warrant requirement. 469 N. W. 2d 462, 466 (1991).
The Minnesota Supreme Court affirmed. Like the Court of Appeals,
the State Supreme Court held that both the stop and the frisk of
respondent were valid under
Terry, but found the seizure of
the cocaine to be unconstitutional. The court expressly refused "to
extend the plain view doctrine to the sense of touch" on the
grounds that "the sense of touch is inherently less immediate and
less reliable than the sense of sight" and that "the sense of touch
is far more intrusive into the personal privacy that is at the core
of the [F]ourth [A]mendment." 481 N. W. 2d 840, 845 (1992). The
court thus appeared to adopt a categorical rule barring the seizure
of any contraband detected by an officer through the sense of touch
during a patdown search for weapons. The court further noted that
"[e]ven if we recognized a 'plain feel' ex-
371
ception, the search in this case would not qualify" because
"[t]he pat search of the defendant went far beyond what is
permissible under
Terry." Id., at 843, 844, n. 1. As the
State Supreme Court read the record, the officer conducting the
search ascertained that the lump in respondent's jacket was
contraband only after probing and investigating what he certainly
knew was not a weapon. See id., at 844.
We granted certiorari, 506 U. S. 814 (1992), to resolve a
conflict among the state and federal courts over whether contraband
detected through the sense of touch during a patdown search may be
admitted into evidence.1 We now affirm.2
1 Most state and federal courts have recognized a so-called
"plain-feel" or "plain-touch" corollary to the plain-view doctrine.
See
United States v.
Coleman, 969
F.2d 126, 132
(CA5 1992);
United States v.
Salazar, 945 F. 2d 47, 51
(CA2 1991), cert. denied,
504 U. S. 923 (1992);
United States v.
Buchannon,
878 F.2d
1065, 1067
(CA8 1989);
United States v.
Williams, 262 U. S. App. D. C. 112, 119-124,
822 F.2d
1174, 1181-1186 (1987);
United States v.
Norman,
701 F.2d
295, 297
(CA4), cert. denied, 464 U. S. 820
(1983);
People v.
Chavers, 33 Cal. 3d 462, 471-473, 658 P. 2d
96, 102-104
(1983); Dickerson v.
State, No. 228, 1993
Del. LEXIS 12, *3-*4 (Jan. 26,
1993); State v.
Guy,
172 Wis. 2d 86, 101-102,492 N. W. 2d 311, 317-318 (1992). Some
state courts, however, like the Minnesota court in this case, have
rejected such a corollary. See
People v.
Diaz, 81 N.
Y. 2d 106, 612 N. E. 2d 298 (1993);
State v.
Collins,
139 Ariz. 434, 435-438, 679 P. 2d 80, 81-84 (Ct. App. 1983);
People v.
McCarty, 11 Ill. App. 3d 421, 422, 296 N.
E. 2d 862, 863 (1973);
State v.
Rhodes, 788 P. 2d
1380, 1381 (Okla. Crim. App. 1990);
State v.
Broadnax, 98 Wash. 2d 289, 296-301, 654 P. 2d 96, 101-103
(1982); cf.
Commonwealth v.
Marconi, 408 Pa. Super.
601, 611-615, and n. 17,597 A. 2d 616, 621-623, and n. 17 (1991),
appeal denied, 531 Pa. 638, 611 A. 2d 711 (1992).
2 Before reaching the merits of the Fourth Amendment issue, we
must address respondent's contention that the case is moot. After
respondent was found guilty of the drug possession charge, the
trial court sentenced respondent under a diversionary sentencing
statute to a 2-year period of probation. As allowed by the
diversionary scheme, no judgment of conviction was entered and,
upon respondent's successful completion of probation, the original
charges were dismissed. See Minn. Stat. § 152.18 (1992). Respondent
argues that the case has been rendered moot by the dismissal of the
original criminal charges. We often have observed, however,
that
372
II A
The Fourth Amendment, made applicable to the States by way of
the Fourteenth Amendment,
Mapp v.
Ohio, 367 U. S. 643 (1961),
guarantees "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures." Time and again, this Court has observed that
searches and seizures" 'conducted outside the judicial process,
without prior approval by judge or magistrate, are
per se
unreasonable under the Fourth Amendment-subject only to a few
specifically established and well delineated exceptions.'"
Thompson v.
Louisiana, 469 U. S. 17, 19-20 (1984)
(per curiam) (quoting
Katz v.
United States,
389 U. S. 347,
357 (1967) (footnotes omitted));
Mincey v.
Arizona,
437 U. S. 385,
390 (1978); see also
United States v.
Place, 462 U. S. 696, 701
(1983). One such exception was
"the possibility of a criminal defendant's suffering 'collateral
legal consequences' from a sentence already served" precludes a
finding of mootness.
Pennsylvania v.
Mimms, 434 U. S. 106, 108, n. 3
(1977)
(per curiam); see also
Evitts v.
Lucey,
469 U. S. 387,
391, n. 4 (1985);
Sibron v.
New York, 392 U. S. 40, 53-58
(1968). In this case, Minnesota law provides that the proceeding
which culminated in finding respondent guilty "shall not be deemed
a conviction for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime or for any other
purpose." Minn. Stat. § 152.18 (1992). The statute also provides,
however, that a nonpublic record of the charges dismissed pursuant
to the statute "shall be retained by the department of public
safety for the purpose of use by the courts in determining the
merits of subsequent proceedings" against the respondent.
Ibid. Construing this provision, the Minnesota Supreme Court
has held that "[t]he statute contemplates use of the record should
[a] defendant have 'future difficulties with the law.'''
State v.
Goodrich, 256 N. W. 2d 506, 512 (1977).
Moreover, the Court of Appeals for the Eighth Circuit has held that
a diversionary disposition under § 152.18 may be included in
calculating a defendant's criminal history category in the event of
a subsequent federal conviction.
United States v.
Frank, 932 F.2d
700, 701 (1991). Thus, we must conclude that reinstatement of
the record of the charges against respondent would carry collateral
legal consequences and that, therefore, a live controversy
remains.
373
recognized in
Terry v.
Ohio, 392 U. S. 1 (1968), which
held that "where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that
criminal activity may be afoot ... ," the officer may briefly stop
the suspicious person and make "reasonable inquiries" aimed at
confirming or dispelling his suspicions.
Id., at 30; see
also
Adams v.
Williams, 407 U. S. 143, 145146
(1972).
Terry further held that "[w]hen an officer is justified
in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to
the officer or to others," the officer may conduct a patdown search
"to determine whether the person is in fact carrying a weapon." 392
U. S., at 24. "The purpose of this limited search is not to
discover evidence of crime, but to allow the officer to pursue his
investigation without fear of violence .... "
Adams, supra,
at 146. Rather, a protective search-permitted without a warrant and
on the basis of reasonable suspicion less than probable cause-must
be strictly "limited to that which is necessary for the discovery
of weapons which might be used to harm the officer or others
nearby."
Terry, supra, at 26; see also
Michigan v.
Long, 463 U.
S. 1032, 1049, and 1052, n. 16 (1983);
Ybarra v.
Illinois, 444
U. S. 85, 93-94 (1979). If the protective search goes beyond
what is necessary to determine if the suspect is armed, it is no
longer valid under
Terry and its fruits will be suppressed.
Sibron v.
New York, 392 U. S. 40, 65-66
(1968).
These principles were settled 25 years ago when, on the same
day, the Court announced its decisions in
Terry and
Sibron. The question presented today is whether police
officers may seize nonthreatening contraband detected during a
protective patdown search of the sort permitted by
Terry. We
think the answer is clearly that they may, so long as the officers'
search stays within the bounds marked by
Terry.
374
B
We have already held that police officers, at least under
certain circumstances, may seize contraband detected during the
lawful execution of a
Terry search. In
Michigan v.
Long, supra, for example, police approached a man who had
driven his car into a ditch and who appeared to be under the
influence of some intoxicant. As the man moved to reenter the car
from the roadside, police spotted a knife on the floorboard. The
officers stopped the man, subjected him to a patdown search, and
then inspected the interior of the vehicle for other weapons.
During the search of the passenger compartment, the police
discovered an open pouch containing marijuana and seized it. This
Court upheld the validity of the search and seizure under
Terry. The Court held first that, in the context of a
roadside encounter, where police have reasonable suspicion based on
specific and articulable facts to believe that a driver may be
armed and dangerous, they may conduct a protective search for
weapons not only of the driver's person but also of the passenger
compartment of the automobile. 463 U. S., at 1049. Of course, the
protective search of the vehicle, being justified solely by the
danger that weapons stored there could be used against the officers
or bystanders, must be "limited to those areas in which a weapon
may be placed or hidden."
Ibid. The Court then held: "If,
while conducting a legitimate
Terry search of the interior
of the automobile, the officer should, as here, discover contraband
other than weapons, he clearly cannot be required to ignore the
contraband, and the Fourth Amendment does not require its
suppression in such circumstances."
Id., at 1050; accord,
Sibron, 392 U. S., at 69-70 (WHITE, J., concurring); id., at
79 (Harlan, J., concurring in result).
The Court in
Long justified this latter holding by
reference to our cases under the "plain-view" doctrine. See
Long, supra, at 1050; see also
United States v.
Hensley, 469 U. S. 221, 235 (1985) (upholding plain-view
seizure in context
375
of
Terry stop). Under that doctrine, if police are
lawfully in a position from which they view an object, if its
incriminating character is immediately apparent, and if the
officers have a lawful right of access to the object, they may
seize it without a warrant. See
Horton v.
California,
496 U. S. 128,
136-137 (1990);
Texas v.
Brown, 460 U. S. 730, 739 (1983)
(plurality opinion). If, however, the police lack probable cause to
believe that an object in plain view is contraband without
conducting some further search of the object-i.
e., if "its
incriminating character [is not] 'immediately apparent,'"
Horton, supra, at 136-the plain-view doctrine cannot justify
its seizure.
Arizona v.
Hicks, 480 U. S. 321 (1987).
We think that this doctrine has an obvious application by
analogy to cases in which an officer discovers contraband through
the sense of touch during an otherwise lawful search. The rationale
of the plain-view doctrine is that if contraband is left in open
view and is observed by a police officer from a lawful vantage
point, there has been no invasion of a legitimate expectation of
privacy and thus no "search" within the meaning of the Fourth
Amendment-or at least no search independent of the initial
intrusion that gave the officers their vantage point. See
Illinois v.
Andreas, 463 U. S. 765, 771
(1983);
Texas v.
Brown, supra, at 740. The
warrantless seizure of contraband that presents itself in this
manner is deemed justified by the realization that resort to a
neutral magistrate under such circumstances would often be
impracticable and would do little to promote the objectives of the
Fourth Amendment. See
Hicks, supra, at 326-327;
Coolidge v.
New Hampshire, 403 U. S. 443, 467468,
469-470 (1971) (opinion of Stewart, J.). The same can be said of
tactile discoveries of contraband. If a police officer lawfully
pats down a suspect's outer clothing and feels an object whose
contour or mass makes its identity immediately apparent, there has
been no invasion of the suspect's privacy beyond that already
authorized by the officer's search for weapons; if the object is
contraband, its warrantless seizure
376
would be justified by the same practical considerations that
inhere in the plain-view context.3
The Minnesota Supreme Court rejected an analogy to the
plain-view doctrine on two grounds: first, its belief that "the
sense of touch is inherently less immediate and less reliable than
the sense of sight," and second, that "the sense of touch is far
more intrusive into the personal privacy that is at the core of the
[F]ourth [A]mendment." 481 N. W. 2d, at 845. We have a somewhat
different view. First,
Terry itself demonstrates that the
sense of touch is capable of revealing the nature of an object with
sufficient reliability to support a seizure. The very premise of
Terry, after all, is that officers will be able to detect
the presence of weapons through the sense of touch and
Terry
upheld precisely such a seizure. Even if it were true that the
sense of touch is generally less reliable than the sense of sight,
that only suggests that officers will less often be able to justify
seizures of unseen contraband. Regardless of whether the officer
detects the contraband by sight or by touch, however, the Fourth
Amendment's requirement that the officer have probable cause to
believe that the item is contraband before seizing it ensures
against excessively speculative seizures.4 The
3 "[T]he police officer in each [case would have] had a prior
justification for an intrusion in the course of which he came
inadvertently across a piece of evidence incriminating the accused.
The doctrine serves to supplement the prior justification ... and
permits the warrantless seizure."
Coolidge v.
New
Hampshire, 403 U.
S. 443, 466 (1971) (opinion of Stewart, J.).
4 We also note that this Court's opinion in
Ybarra v.
Illinois, 444
U. S. 85 (1979), appeared to contemplate the possibility that
police officers could obtain probable cause justifying a seizure of
contraband through the sense of touch. In that case, police
officers had entered a tavern and subjected its patrons to patdown
searches. While patting down the petitioner Ybarra, an "officer
felt what he described as 'a cigarette pack with objects in it,'"
seized it, and discovered heroin inside.
Id., at 88-89. The
State argued that the seizure was constitutional on the grounds
that the officer obtained probable cause to believe that Ybarra was
carrying contraband during the course of a lawful
Terry
frisk.
Ybarra, supra, at 92. This
377
court's second concern-that touch is more intrusive into privacy
than is sight-is inapposite in light of the fact that the intrusion
the court fears has already been authorized by the lawful search
for weapons. The seizure of an item whose identity is already known
occasions no further invasion of privacy. See
Soldal v.
Cook County, 506 U. S. 56, 66
(1992); Horton, supra, at 141;
United States v.
Jacobsen, 466 U. S. 109, 120 (1984). Accordingly, the
suspect's privacy interests are not advanced by a categorical rule
barring the seizure of contraband plainly detected through the
sense of touch.
III
It remains to apply these principles to the facts of this case.
Respondent has not challenged the finding made by the trial court
and affirmed by both the Court of Appeals and the State Supreme
Court that the police were justified under
Terry in stopping
him and frisking him for weapons. Thus, the dispositive question
before this Court is whether the officer who conducted the search
was acting within the lawful bounds marked by
Terry at the
time he gained probable cause to believe that the lump in
respondent's jacket was contraband. The State District Court did
not make precise findings on this point, instead finding simply
that the officer, after feeling "a small, hard object wrapped in
plastic" in respondent's pocket, "formed the opinion that the
object ... was crack ... cocaine." App. to Pet. for Cert. C-2.
The
Court rejected that argument on the grounds that "[t]he initial
frisk of Ybarra was simply not supported by a reasonable belief
that he was armed and presently dangerous," as required by
Terry. 444 U. S., at 92-93. The Court added: "[s]ince we
conclude that the initial patdown of Ybarra was not justified under
the Fourth and Fourteenth Amendments, we need not decide whether or
not the presence on Ybarra's person of 'a cigarette pack with
objects in it' yielded probable cause to believe that Ybarra was
carrying any illegal substance."
Id., at 93, n. 5. The
Court's analysis does not suggest, and indeed seems inconsistent
with, the existence of a categorical bar against seizures of
contraband detected manually during a
Terry patdown
search.
378
District Court also noted that the officer made "no claim that
he suspected this object to be a weapon," id., at C-5, a finding
affirmed on appeal, see 469 N. W. 2d, at 464 (the officer "never
thought the lump was a weapon"). The Minnesota Supreme Court, after
"a close examination of the record," held that the officer's own
testimony "belies any notion that he 'immediately'" recognized the
lump as crack cocaine. See 481 N. W. 2d, at 844. Rather, the court
concluded, the officer determined that the lump was contraband only
after "squeezing, sliding and otherwise manipulating the contents
of the defendant's pocket"-a pocket which the officer already knew
contained no weapon.
Ibid.
Under the State Supreme Court's interpretation of the record
before it, it is clear that the court was correct in holding that
the police officer in this case overstepped the bounds of the
"strictly circumscribed" search for weapons allowed under
Terry. See
Terry, 392 U. S., at 26. Where, as here,
"an officer who is executing a valid search for one item seizes a
different item," this Court rightly "has been sensitive to the
danger ... that officers will enlarge a specific authorization,
furnished by a warrant or an exigency, into the equivalent of a
general warrant to rummage and seize at will."
Texas v.
Brown, 460 U. S., at 748 (STEVENS, J., concurring in
judgment). Here, the officer's continued exploration of
respondent's pocket after having concluded that it contained no
weapon was unrelated to "[t]he sole justification of the search
[under
Terry:] ... the protection of the police officer and
others nearby." 392 U. S., at 29. It therefore amounted to the sort
of evidentiary search that
Terry expressly refused to
authorize, see id., at 26, and that we have condemned in subsequent
cases. See
Michigan v.
Long, 463 U. S., at 1049, n.
14;
Sibron, 392 U. S., at 65-66.
Once again, the analogy to the plain-view doctrine is apt.
In
Arizona v.
Hicks, 480 U. S. 321 (1987),
this Court held invalid the seizure of stolen stereo equipment
found by police while executing a valid search for other evidence.
Although
379
the police were lawfully on the premises, they obtained probable
cause to believe that the stereo equipment was contraband only
after moving the equipment to permit officers to read its serial
numbers. The subsequent seizure of the equipment could not be
justified by the plain-view doctrine, this Court explained, because
the incriminating character of the stereo equipment was not
immediately apparent; rather, probable cause to believe that the
equipment was stolen arose only as a result of a further search-the
moving of the equipment-that was not authorized by a search warrant
or by any exception to the warrant requirement. The facts of this
case are very similar. Although the officer was lawfully in a
position to feel the lump in respondent's pocket, because
Terry entitled him to place his hands upon respondent's
jacket, the court below determined that the incriminating character
of the object was not immediately apparent to him. Rather, the
officer determined that the item was contraband only after
conducting a further search, one not authorized by
Terry or
by any other exception to the warrant requirement. Because this
further search of respondent's pocket was constitutionally invalid,
the seizure of the cocaine that followed is likewise
unconstitutional.
Horton, 496 U. S., at 140.
IV
For these reasons, the judgment of the Minnesota Supreme Court
is
Affirmed.
JUSTICE SCALIA, concurring.
I take it to be a fundamental principle of constitutional
adjudication that the terms in the Constitution must be given the
meaning ascribed to them at the time of their ratification. Thus,
when the Fourth Amendment provides that "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated"
(emphasis added), it "is
380
to be construed in the light of what was deemed an unreasonable
search and seizure when it was adopted,"
Carroll v.
United States, 267 U. S. 132, 149
(1925); see also
California v.
Acevedo, 500 U. S. 565, 583-584
(1991) (SCALIA, J., concurring in judgment). The purpose of the
provision, in other words, is to preserve that degree of respect
for the privacy of persons and the inviolability of their property
that existed when the provision was adopted-even if a later, less
virtuous age should become accustomed to considering all sorts of
intrusion "reasonable."
My problem with the present case is that I am not entirely sure
that the physical search-the "frisk"-that produced the evidence at
issue here complied with that constitutional standard. The decision
of ours that gave approval to such searches,
Terry v.
Ohio, 392 U. S.
1 (1968), made no serious attempt to determine compliance with
traditional standards, but rather, according to the style of this
Court at the time, simply adjudged that such a search was
"reasonable" by current estimations.
Id., at 22-27.
There is good evidence, I think, that the "stop" portion of the
Terry "stop-and-frisk" holding accords with the common
law-that it had long been considered reasonable to detain
suspicious persons for the purpose of demanding that they give an
account of themselves. This is suggested, in particular, by the
so-called night-walker statutes, and their common-law antecedents.
See Statute of Winchester, 13 Edw. I, Stat. 2, ch. 4 (1285);
Statute of 5 Edw. III, ch. 14 (1331); 2 W. Hawkins, Pleas of the
Crown, ch. 13, § 6, p. 129 (8th ed. 1824) ("It is holden that this
statute was made in affirmance of the common law, and that every
private person may by the common law arrest any suspicious
night-walker, and detain him till he give a good account of
himself"); 1 E. East, Pleas of the Crown, ch. 5, § 70, p. 303
(1803) ("It is said ... that every private person may by the common
law arrest any suspicious night-walker, and detain him till he give
a good account of himself"); see also M. Dalton, The Country
381
Justice, ch. 104, pp. 352-353 (1727); A. Costello, Our Police
Protectors: History of the New York Police 25 (1885) (citing 1681
New York City regulation); 2 Perpetual Laws of Massachusetts
1788-1798, ch. 82, §2, p. 410 (1797 Massachusetts statute).
I am unaware, however, of any precedent for a physical search of
a person thus temporarily detained for questioning. Sometimes, of
course, the temporary detention of a suspicious character would be
elevated to a full custodial arrest on probable cause-as, for
instance, when a suspect was unable to provide a sufficient
accounting of himself. At that point, it is clear that the common
law would permit not just a protective "frisk," but a full physical
search incident to the arrest. When, however, the detention did not
rise to the level of a full-blown arrest (and was not supported by
the degree of cause needful for that purpose), there appears to be
no clear support at common law for physically searching the
suspect. See Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315,
324 (1942) ("At common law, if a watchman came upon a suspiciously
acting nightwalker, he might arrest him and then search him for
weapons, but he had no right to search before arrest"); Williams,
Police Detention and Arrest Privileges-England, 51 J. Crim. L., C.
& P. S. 413, 418 (1960) ("Where a suspected criminal is also
suspected of being offensively armed, can the police search him for
arms, by tapping his pockets, before making up their minds whether
to arrest him? There is no English authority ... ").
I frankly doubt, moreover, whether the fiercely proud men who
adopted our Fourth Amendment would have allowed themselves to be
subjected, on mere
suspicion of being armed and dangerous,
to such indignity-which is described as follows in a police
manual:
"Check the subject's neck and collar. A check should be made
under the subject's arm. Next a check should be made of the upper
back. The lower back should also be checked.
382
"A check should be made of the upper part of the man's chest and
the lower region around the stomach. The belt, a favorite
concealment spot, should be checked. The inside thigh and crotch
area also should be searched. The legs should be checked for
possible weapons. The last items to be checked are the shoes and
cuffs of the subject." J. Moynahan, Police Searching Procedures 7
(1963) (citations omitted).
On the other hand, even if a "frisk" prior to arrest would have
been considered impermissible in 1791, perhaps it was considered
permissible by 1868, when the Fourteenth Amendment (the basis for
applying the Fourth Amendment to the States) was adopted. Or
perhaps it is only since that time that concealed weapons capable
of harming the interrogator quickly and from beyond arm's reach
have become common-which might alter the judgment of what is
"reasonable" under the original standard. But technological changes
were no more discussed in
Terry than was the original state
of the law.
If I were of the view that
Terry was (insofar as the
power to "frisk" is concerned) incorrectly decided, I might-even if
I felt bound to adhere to that case-vote to exclude the evidence
incidentally discovered, on the theory that half a constitutional
guarantee is better than none. I might also vote to exclude it if I
agreed with the original-meaning-isirrelevant,
good-policy-is-constitutional-Iaw school of jurisprudence that the
Terry opinion represents. As a policy matter, it may be
desirable to permit "frisks" for weapons, but not to
encourage "frisks" for drugs by admitting evidence other
than weapons.
I adhere to original meaning, however. And though I do not favor
the mode of analysis in
Terry, I cannot say that its result
was wrong. Constitutionality of the "frisk" in the present case was
neither challenged nor argued. Assuming, therefore, that the search
was lawful, I agree with the Court's premise that any evidence
incidentally discovered in
383
the course of it would be admissible, and join the Court's
opinion in its entirety.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE BLACKMUN and JUSTICE
THOMAS join, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion. Unlike the Court,
however, I would vacate the judgment of the Supreme Court of
Minnesota and remand the case to that court for further
proceedings.
The Court, correctly in my view, states that "the dispositive
question before this Court is whether the officer who conducted the
search was acting within the lawful bounds marked by
Terry
[v.
Ohio, 392 U.
S. 1 (1968),] at the time he gained probable cause to believe
that the lump in respondent's jacket was contraband."
Ante,
at 377. The Court then goes on to point out that the state trial
court did not make precise findings on this point, but accepts the
appellate findings made by the Supreme Court of Minnesota. I
believe that these findings, like those of the trial court, are
imprecise and not directed expressly to the question of the
officer's probable cause to believe that the lump was contraband.
Because the Supreme Court of Minnesota employed a Fourth Amendment
analysis which differs significantly from that now adopted by this
Court, I would vacate its judgment and remand the case for further
proceedings there in the light of this Court's opinion.
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