California v. Hodari D./Dissent Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice MARSHALL joins, dissenting.

The Court's narrow construction of the word "seizure" represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment. ^[1] Almost a quarter of a century ago, in two landmark cases-one broadening the protection of individual privacy, ^[2] and the other broadening the powers of law enforcement officers ^[3] -we rejected the method of Fourth Amendment analysis that today's majority endorses. In particular, the Court now adopts a definition of "seizure" that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment-as long as he misses his target.

For the purposes of decision, the following propositions are not in dispute. First, when Officer Pertoso began his pursuit of respondent, ^[4] the officer did not have a lawful basis for either stopping or arresting respondent. See App. 138-140; ante, at 623, n. 1. Second, the officer's chase amounted to a "show of authority" as soon as respondent saw the officer nearly upon him. See ante, at 625-626, 629. Third, the act of discarding the rock of cocaine was the direct consequence of the show of authority. See Pet. for Cert. 48-49, 52. Fourth, as the Court correctly demonstrates, no common-law arrest occurred until the officer tackled respondent. See ante, at 624-625. Thus, the Court is quite right in concluding that the abandonment of the rock was not the fruit of a common-law arrest.

It is equally clear, however, that if the officer had succeeded in touching respondent before he dropped the rock-evenif he did not subdue him-an arrest would have occurred. ^[5] See ante, at 624-625,626. In that event (assuming the touching precipitated the abandonment), the evidence would have been the fruit of an unlawful common-law arrest. The distinction between the actual case and the hypothetical case is the same as the distinction between the common-law torts of assault and battery-a touching converts the former into the latter. ^[6] Although the distinction between assault and battery was important for pleading purposes, see 2 J. Chitty, Pleading *372-*376, the distinction should not take on constitutional dimensions. The Court mistakenly allows this common-law distinction to define its interpretation of the Fourth Amendment.

At the same time, the Court fails to recognize the existence of another, more telling, common-law distinction-the distinction between an arrest and an attempted arrest. As the Court teaches us, the distinction between battery and assault was critical to a correct understanding of the common law of arrest. See ante, at 626 ("An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority"). However, the facts of this case do not describe an actual arrest, but rather an unlawful attempt to take a presumptively innocent person into custody. Such an attempt was unlawful at common law. ^[7] Thus, if the Court wants to define the scope of the Fourth Amendment based on the common law, it should look, not to the common law of arrest, but to the common law of attempted arrest, according to the facts of this case.

The first question, then, is whether the common law should define the scope of the outer boundaries of the constitutional protection against unreasonable seizures. Even if, contrary to settled precedent, traditional common-law analysis were controlling, it would still be necessary to decide whether the unlawful attempt to make an arrest should be considered a seizure within the meaning of the Fourth Amendment, and whether the exclusionary rule should apply to unlawful attempts.

* The Court today takes a narrow view of "seizure," which is at odds with the broader view adopted by this Court almost 25 years ago. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court considered whether electronic surveillance conducted "without any trespass and without the seizure of any material object fell outside the ambit of the Constitution." Id., at 353, 88 S.Ct., at 512. Over Justice Black's powerful dissent, we rejected that "narrow view" of the Fourth Amendment and held that electronic eavesdropping is a "search and seizure" within the meaning of the Amendment. Id., at 353-354, 88 S.Ct., at 512. We thus endorsed the position expounded by two of the dissenting Justices in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928): "Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it." Id., at 476, 48 S.Ct., at 571 (Brandeis, J., dissenting).

"The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words." Id., at 488, 48 S.Ct., at 576 (Butler, J., dissenting).

Writing for the Court in Katz, Justice Stewart explained:

"Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people-and not simply 'areas' against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

"We conclude that the underpinnings of Olmstead and Goldman [v. U.S., 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) ] have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

"The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards." 389 U.S., at 353-354, 88 S.Ct., at 512.

Significantly, in the Katz opinion, the Court repeatedly used the word "seizure" to describe the process of recording sounds that could not possibly have been the subject of a common-law seizure. See id., at 356, 357, 88 S.Ct., at 514.

Justice Black's reasoning, which was rejected by the Court in 1967, is remarkably similar to the reasoning adopted by the Court today. After criticizing "language-stretching judges," id., at 366, 88 S.Ct., at 519, Justice Black wrote:

"I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal construction. This principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the 'seizure' of conversations." Id., at 366-367 [88 S.Ct., at 519].

"Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to 'keep the Constitution up to date' or 'to bring it into harmony with the times.' It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention." Id., at 373, 88 S.Ct., at 523.

The expansive construction of the word "seizure" in the Katz case provided an appropriate predicate for the Court's holding in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the following year. ^[8] Prior to Terry, the Fourth Amendment proscribed any seizure of the person that was not supported by the same probable cause showing that would justify a custodial arrest. ^[9] See Dunaway v. New York, 442 U.S. 200, 207-209, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979). Given the fact that street encounters between citizens and police officers "are incredibly rich in diversity," Terry, 392 U.S., at 13, 88 S.Ct., at 1875, the Court recognized the need for flexibility and held that "reasonable" suspicion-a quantum of proof less demanding than probable cause-was adequate to justify a stop for investigatory purposes. Id., at 21-22, 88 S.Ct., at 1880. As a corollary to the lesser justification for the stop, the Court necessarily concluded that the word "seizure" in the Fourth Amendment encompasses official restraints on individual freedom that fall short of a common-law arrest. Thus, Terry broadened the range of encounters between the police and the citizen encompassed within the term "seizure," while at the same time, lowering the standard of proof necessary to justify a "stop" in the newly expanded category of seizures now covered by the Fourth Amendment. ^[10] The Court explained:

"Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden 'seized' Terry and whether and when he conducted a 'search.' There is some suggestion in the use of such terms as 'stop' and 'frisk' that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a 'search' or 'seizure' within the meaning of the Constitution. We emphatically reject this notion. 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." Id., at 16, 88 S.Ct., at 1877 (footnote omitted).

"The distinctions of classical 'stop-and-frisk' theory thus serve to divert attention from the central inquiry under the Fourth Amendment-the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. 'Search' and 'seizure' are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest' or a 'full-blown search.' " Id., at 19, 88 S.Ct., at 1878.

The decisions in Katz and Terry unequivocally reject the notion that the common law of arrest defines the limits of the term "seizure" in the Fourth Amendment. In Katz, the Court abandoned the narrow view that would have limited a seizure to a material object, and, instead, held that the Fourth Amendment extended to the recording of oral statements. And in Terry, the Court abandoned its traditional view that a seizure under the Fourth Amendment required probable cause, and, instead, expanded the definition of a seizure to include an investigative stop made on less than probable cause. Thus, the major premise underpinning the majority's entire analysis today-that the common law of arrest should define the term "seizure" for Fourth Amendment purposes, see ante, at 624-625-is seriously flawed. The Court mistakenly hearkens back to common law, while ignoring the expansive approach that the Court has taken in Fourth Amendment analysis since Katz and Terry. ^[11]

The Court fares no better when it tries to explain why the proper definition of the term "seizure" has been an open question until today. In Terry, in addition to stating that a seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away," 392 U.S., at 16, 88 S.Ct., at 1877, the Court noted that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. . . ." Id., at 19, n. 16, 88 S.Ct., at 1879, n. 16. The touchstone of a seizure is the restraint of an individual's personal liberty "in some way." Ibid. (emphasis added). ^[12] Today the Court's reaction to respondent's reliance on Terry is to demonstrate that in "show of force" cases no common-law arrest occurs unless the arrestee submits. See ante, at 626-627. That answer, however, is plainly insufficient given the holding in Terry that the Fourth Amendment applies to stops that need not be justified by probable cause in the absence of a full-blown arrest.

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Court "adhere[d] to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." Id., at 553, 100 S.Ct., at 1876. The Court looked to whether the citizen who is questioned "remains free to disregard the questions and walk away," and if she is able to do so, then "there has been no intrusion upon that person's liberty or privacy" that would require some "particularized and objective justification" under the Constitution. Id., at 554, 100 S.Ct., at 1877. The test for a "seizure," as formulated by the Court in Mendenhall, was whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Ibid. Examples of seizures include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Ibid. The Court's unwillingness today to adhere to the "reasonable person" standard, as formulated by Justice Stewart in Mendenhall, marks an unnecessary departure from Fourth Amendment case law.

The Court today draws the novel conclusion that even though no seizure can occur unless the Mendenhall reasonable person standard is met, see ante, at 628, the fact that the standard has been met does not necessarily mean that a seizure has occurred. See ibid. (Mendenhall "states a necessary, but not a sufficient condition for seizure . . . effected through a 'show of authority' "). If it were true that a seizure requires more than whether a reasonable person felt free to leave, then the following passage from the Court's opinion in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), is at best, seriously misleading:

"As we have noted elsewhere: 'Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may we conclude that a "seizure" has occurred.' Terry v. Ohio, supra, at 19, n. 16 [88 S.Ct., at 1879, n. 16]. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U.S. 200, 212-216, 99 S.Ct. 2248, 2256-2258, 60 L.Ed.2d 824 (1979), the protection against unreasonable seizures also extends to 'seizures that involve only a brief detention short of traditional arrest.' United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, 'if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' Mendenhall, supra, [446 U.S.] at 554 [100 S.Ct. at 1877] (footnote omitted); see Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion)." Id., 466 U.S. at 215, 104 S.Ct. at 1762.

More importantly, in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a plurality of the Court adopted Justice Stewart's formulation in Mendenhall as the appropriate standard for determining when police questioning crosses the threshold from a consensual encounter to a forcible stop. In Royer, the Court held that an illegal seizure had occurred. As a predicate for that holding, Justice WHITE, in his opinion for the plurality, explained that the citizen "may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, at 556 [100 S.Ct., at 1878] (opinion of Stewart, J.)." 460 U.S., at 498, 103 S.Ct., at 1324 (emphasis added). The rule looks, not to the subjective perceptions of the person questioned, but rather, to the objective characteristics of the encounter that may suggest whether a reasonable person would have felt free to leave.

Even though momentary, a seizure occurs whenever an objective evaluation of a police officer's show of force conveys the message that the citizen is not entirely free to leave-in other words, that his or her liberty is being restrained in a significant way. That the Court understood the Mendenhall definition as both necessary and sufficient to describe a Fourth Amendment seizure is evident from this passage in our opinion in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984):

"A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

Finally, it is noteworthy that in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), the State asked us to repudiate the reasonable person standard developed in Terry, Mendenhall, Delgado, and Royer. ^[13] We decided, however, to "adhere to our traditional contextual approach," 486 U.S., at 573, 108 S.Ct., at 1979. In our opinion, we described Justice Stewart's analysis in Mendenhall as "a test to be applied in determining whether 'a person has been "seized" within the meaning of the Fourth Amendment' " and noted that "[t]he Court has since embraced this test." 486 U.S., at 573, 108 S.Ct., at ----. Moreover, in commenting on the virtues of the test, we explained that it focused on the police officer's conduct:

"The test's objective standard-looking to the reasonable man's interpretation of the conduct in question-allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment." Id., at 574, 108 S.Ct., at 1980.

Expressing his approval of the Court's rejection of Michigan's argument in Chesternut, Professor LaFave observed:

"The 'free to leave' concept, in other words, has nothing to do with a particular suspect's choice to flee rather than submit or with his assessment of the probability of successful flight. Were it otherwise, police would be encouraged to utilize a very threatening but sufficiently slow chase as an evidence-gathering technique whenever they lack even the reasonable suspicion needed for a Terry stop." 3 W. LaFave, Search and Seizure § 9.2, p. 61 (2d ed. 1987, Supp.1991).

Whatever else one may think of today's decision, it unquestionably represents a departure from earlier Fourth Amendment case law. The notion that our prior cases contemplated a distinction between seizures effected by a touching on the one hand, and those effected by a show of force on the other hand, and that all of our repeated descriptions of the Mendenhall test stated only a necessary, but not a sufficient, condition for finding seizures in the latter category, is nothing if not creative lawmaking. Moreover, by narrowing the definition of the term seizure, instead of enlarging the scope of reasonable justifications for seizures, the Court has significantly limited the protection provided to the ordinary citizen by the Fourth Amendment. As we explained in Terry:

"The danger in the logic which proceeds upon distinctions between a 'stop' and an 'arrest,' or 'seizure' of the person, and between a 'frisk' and a 'search' is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation." Terry v. Ohio, 392 U.S., at 17, 88 S.Ct., at 1877-1878.

In this case the officer's show of force-taking the form of a head-on chase-adequately conveyed the message that respondent was not free to leave. ^[14] Whereas in Mendenhall, there was "nothing in the record [to] sugges[t] that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way," 446 U.S., at 555, 100 S.Ct., at 1877, here, respondent attempted to end "the conversation" before it began and soon found himself literally "not free to leave" when confronted by an officer running toward him head-on who eventually tackled him to the ground. There was an interval of time between the moment that respondent saw the officer fast approaching and the moment when he was tackled, and thus brought under the control of the officer. The question is whether the Fourth Amendment was implicated at the earlier or the later moment.

Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue would arise if the show of force took the form of a command to "freeze," a warning shot, or the sound of sirens accompanied by a patrol car's flashing lights. In any of these situations, there may be a significant time interval between the initiation of the officer's show of force and the complete submission by the citizen. At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen's reaction, rather than by the officer's conduct. See ante, at 626-627. One consequence of this conclusion is that the point at which the interactionbetween citizen and police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no longer free to go, but, rather, only after the officer exercises control over the citizen.

In my view, our interests in effective law enforcement and in personal liberty ^[15] would be better served by adhering to a standard that "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment." Chesternut, 486 U.S., at 574, 108 S.Ct., at 1980. The range of possible responses to a police show of force, and the multitude of problems that may arise in determining whether, and at which moment, there has been "submission," can only create uncertainty and generate litigation.

In some cases, of course, it is immediately apparent at which moment the suspect submitted to an officer's show of force. For example, if the victim is killed by an officer's gunshot, ^[16] as in Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985) ("A police officer may not seize an unarmed, nondangerous suspect by shooting him dead"), ^[17] or by a hidden roadblock, as in Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the submission is unquestionably complete. But what if, for example, William James Caldwell (Brower) had just been wounded before being apprehended? Would it be correct to say that no seizure had occurred and therefore the Fourth Amendment was not implicated even if the pursuing officer had no justification whatsoever for initiating the chase? The Court's opinion in Brower suggests that the officer's responsibility should not depend on the character of the victim's evasive action. The Court wrote:

"Brower's independent decision to continue the chase can no more eliminate respondents' responsibility for the termination of his movement effected by the roadblock than Garner's independent decision to flee eliminated the Memphis police officer's responsibility for the termination of his movement effected by the bullet." Id., at 595, 109 S.Ct., at 1380.

It seems equally clear to me that the constitutionality of a police officer's show of force should be measured by the conditions that exist at the time of the officer's action. A search must be justified on the basis of the facts available at the time it is initiated; the subsequent discovery of evidence does not retroactively validate an unconstitutional search. The same approach should apply to seizures; the character of the citizen's response should not govern the constitutionality of the officer's conduct.

If an officer effects an arrest by touching a citizen, apparently the Court would accept the fact that a seizure occurred, even if the arrestee should thereafter break loose and flee. In such a case, the constitutionality of the seizure would be evaluated as of the time the officer acted. That category of seizures would then be analyzed in the same way as searches, namely, was the police action justified when it took place? It is anomalous, at best, to fashion a different rule for the subcategory of "show of force" arrests.

In cases within this new subcategory, there will be a period of time during which the citizen's liberty has been restrained, but he or she has not yet completely submitted to the show of force. A motorist pulled over by a highway patrol car cannot come to an immediate stop, even if the motorist intends to obey the patrol car's signal. If an officer decides to make the kind of random stop forbidden by Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and, after flashing his lights, but before the vehicle comes to a complete stop, sees that the license plate has expired, can he justify his action on the ground that the seizure became lawful after it was initiated but before it was completed? In an airport setting, may a drug enforcement agent now approach a group of passengers with his gun drawn, announce a "baggage search," and rely on the passengers' reactions to justify his investigative stops? The holding of today's majority fails to recognize the coercive and intimidating nature of such behavior and creates a rule that may allow such behavior to go unchecked.

The deterrent purposes of the exclusionary rule focus on the conduct of law enforcement officers and on discouraging improper behavior on their part, ^[18] and not on the reaction of the citizen to the show of force. In the present case, if Officer Pertoso had succeeded in tackling respondent before he dropped the rock of cocaine, the rock unquestionably would have been excluded as the fruit of the officer's unlawful seizure. Instead, under the Court's logic-chopping analysis, the exclusionary rule has no application because an attempt to make an unconstitutional seizure is beyond the coverage of the Fourth Amendment, no matter how outrageous or unreasonable the officer's conduct may be.

It is too early to know the consequences of the Court's holding. If carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they may still have. It is not too soon, however, to note the irony in the fact that the Court's own justification for its result is its analysis of the rules of the common law of arrest that antedated our decisions in Katz and Terry. Yet, even in those days the common law provided the citizen with protection against an attempt to make an unlawful arrest. See nn. 5 and 7, supra. The central message of Katz and Terry was that the protection the Fourth Amendment provides to the average citizen is not rigidly confined by ancient common-law precept. The message that today's literal-minded majority conveys is that the common law, rather than our understanding of the Fourth Amendment as it has developed over the last quarter of a century, defines, and limits, the scope of a seizure. The Court today defines a seizure as commencing, not with egregious police conduct, but rather with submission by the citizen. Thus, it both delays the point at which "the Fourth Amendment becomes relevant" ^[19] to an encounter and limits the range of encounters that will come under the heading of "seizure." Today's qualification of the Fourth Amendment means that innocent citizens may remain "secure in their persons . . . against unreasonable searches and seizures" only at the discretion of the police. ^[20]

"[A]n illegal search and seizure usually is a single incident, perpetrated by surprise, conducted in haste, kept purposely beyond the court's supervision and limited only by the judgment and moderation of officers whose own interests and records are often at stake in the search. . . . The citizen's choice is quietly to submit to whatever the officers undertake or to resist at risk of arrest or immediate violence." Brinegar v. United States, 338 U.S. 160, 182, 69 S.Ct. 1302, 1314, 93 L.Ed. 1879 (1949) (dissenting opinion).

Some sacrifice of freedom always accompanies an expansion in the executive's unreviewable ^[21] law enforcement powers. A court more sensitive to the purposes of the Fourth Amendment would insist on greater rewards to society before decreeing the sacrifice it makes today. Alexander Bickel presciently wrote that "many actions of government have two aspects: their immediate, necessarily intended, practical effects, and their perhaps unintended or unappreciated bearing on values we hold to have more general and permanent interest." ^[22] The Court's immediate concern with containing criminal activity poses a substantial, though unintended, threat to values that are fundamental and enduring.

I respectfully dissent.

Notes

1. The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ."
2. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
3. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
4. The Court's gratuitous quotation from Proverbs 28:1, see ante, at 623, n. 1, mistakenly assumes that innocent residents have no reason to fear the sudden approach of strangers. We have previously considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the experience of many residents, particularly if they are members of a minority. See generally Johnson, Race and the Decision To Detain a Suspect, 93 Yale L.J. 214 (1983). It has long been "a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as bold as a lion.' " Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 869, 40 L.Ed. 1051 (1896).
5. "[I]f the officer pronounces words of arrest without an actual touching and the other immediately runs away, there is no escape (in the technical sense) because there was no arrest. It would be otherwise had the officer touched the arrestee for the purpose of apprehending him, because touching for the manifested purpose of arrest by one having lawful authority completes the apprehension, 'although he does not succeed in stopping or holding him even for an instant.' " Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940) (footnotes omitted).
6. "One who undertakes to make an arrest without lawful authority, or who attempts to do so in an unlawful manner, is guilty of an assault if the other is ordered to submit to the asserted authority, is guilty of battery if he lays hands on the other for this unlawful purpose. . . ." Id., at 263 (footnotes omitted).
7. "[E]ven without touching the other, the officer may subject himself to liability if he undertakes to make an arrest without being privileged by law to do so.3
8. "We have recently held that 'the Fourth Amendment protects people, not places,' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and wherever an individual may harbor a reasonable 'expectation of privacy,' id., at 361, 88 S.Ct., at 516 (MR. Justice HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For 'what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.' Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960)." Terry v. Ohio, 392 U.S., at 9, 88 S.Ct., at 1873.
9. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the case on which the majority largely relies, was decided over 40 years before Terry. In that case, the defendant did not even argue that there was a seizure of his person. The Court's holding in Hester that the abandoned moonshine whiskey had not been seized simply did not address the question whether it would have been the fruit of a constitutional violation if there had been a seizure of the person before the whiskey was abandoned.
10. The Court applied this principle in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979):
11. It is noteworthy that the Court has relied so heavily on cases and commentary that antedated Katz and Terry.
12. "The essential teaching of the Court's decision in Terry that an individual's right to personal security and freedom must be respected even in encounters with the police that fall short of full arrest-has been consistently reaffirmed." INS v. Delgado, 466 U.S. 210, 227, 104 S.Ct. 1758, 1768, 80 L.Ed.2d 247 (1984) (Brennan, J., concurring in part and dissenting in part).
13. "Petitioner argues that the Fourth Amendment is never implicated until an individual stops in response to the police's show of authority. Thus, petitioner would have us rule that a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive, as long as the police did not succeed in actually apprehending the individual." Michigan v. Chesternut, 486 U.S., at 572, 108 S.Ct., at 1979.
14. The California Court of Appeal noted:
15. "To determine the constitutionality of a seizure '[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.' " Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (citation omitted).
16. Even under the common law, "If an officer shoots at an arrestee when he is not privileged to do so, he is guilty of an aggravated assault. And if death results from an arrest, or attempted arrest, which was not authorized at all, . . . the arrester is guilty of manslaughter or, in extreme cases, of murder." Perkins, 25 Iowa L.Rev., at 263-264.
17. In Tennessee v. Garner, even the dissent agreed with the majority that the police officer who shot at a fleeing suspect had " 'seized' [the suspect] by shooting him." 471 U.S., at 25, 105 S.Ct., at 1708 (O'CONNOR, J., dissenting).
18. The purpose of the Fourth Amendment is " 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' " INS v. Delgado, 466 U.S., at 215, 104 S.Ct., at 1762 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976)); see Mendenhall, 446 U.S., at 553-554, 100 S.Ct., at 1876-1877 (same); Terry v. Ohio, 392 U.S., at 12, 88 S.Ct., at 1875 ("Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct"); 4 W. LaFave, Search and Seizure § 11.4(j), pp. 459-460 (2d ed. 1987) ("Incriminating admissions and attempts to dispose of incriminating evidence are common and predictable consequences of illegal arrests and searches, and thus to admit such evidence would encourage such Fourth Amendment violations in future cases").
19. Terry v. Ohio, 392 U.S., at 16, 88 S.Ct., at 1877.
20. Justice Jackson presaged this development when he wrote:
21. "[T]he right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court. . . . There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear." Id., at 181, 69 S.Ct., at 1313 (Jackson, J., dissenting).
22. The Least Dangerous Branch 24 (1962).