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>> Warren E. Burger: We will hear arguments next in Florida against Royer.
Mr. Fox, I think you may proceed whenever you are ready.
>> Calvin L. Fox: Mr. Chief Justice, may it please the Court, this is a petition to review
the decision of the Florida Third District Court of Appeal in which the Florida Third
District Court of Appeal reversed both the appellate panel and the trial court upon their
denial of the defendant's motion to suppress. The facts are extremely simple.
The defendant was arrested at the Miami International Airport carrying 65 pounds of marijuana in
his luggage. The state's witness, Detective Johnson, an
experienced narcotics officer, testified generally as to his training and profile, so-called
A, so-called D, a profile, and the fact that he observed thousands of passengers each week
at the Miami International Airport eight hours a day, five days a week.
On January 3rd, 1978, about noon, the defendant appeared at the airport.
Detective Johnson testified that in his experience and Detective Magdalena's experience, it was
undeniable that the defendant's conduct and demeanor attracted their attention.
The defendant was extremely nervous, pale, uneasy, looking about, and Detective Johnson
testified that in his experience, the defendant was not a so-called white knuckled flier,
but rather was concerned about being detected. The bags the defendant was carrying were very
heavy. He had produced an extremely large roll of
cash to pay for his ticket. The defendant was observed placing on the
airline identification labels the name of Holt, and his ticket apparently was also in
that name also. It was undisputed below--
>> Unidentified Justice: That was on his baggage, you said?
>> Calvin L. Fox: --Yes, Your Honor. >> Unidentified Justice: When did the officer
find out that he bought a one-way ticket, if that was the case?
>> Calvin L. Fox: When they examined his ticket and license upon request at the initial encounter
with the defendant, Your Honor. It was undisputed, as a matter of fact, including
through the defendant's testimony, that they approached him and asked him if he had a moment
to talk, and he said, fine. The defendant himself testified that upon
request-- >> Unidentified Justice: Did they identify
themselves at that time? >> Calvin L. Fox: --Yes, Your Honor, they
identified themselves as narcotics officers, and said, may we speak with you a moment.
The defendant himself testified that he voluntarily produced his ticket and his license for their
examination. They immediately noticed the discrepancy between
his ticket and the baggage and the license, and he explained that someone else had made
the reservation for him. Johnson then told the defendant that they
believed that he was carrying narcotics, and would he come to a room a few feet away for
further discussion. Johnson said the defendant was thoroughly
cooperative throughout the transaction. The detectives were in plain clothes.
They displayed no insignia. They carried weapons but they were concealed.
They did not... There is no showing in this record that they blocked his path in any way.
They were courteous at all times. They did not threaten--
>> Unidentified Justice: So what did he say when they asked him?
>> Calvin L. Fox: --He followed them to the room.
>> Unidentified Justice: He didn't say anything? >> Calvin L. Fox: He did not say anything.
He went with the room to them. >> Unidentified Justice: Well, did they indicate
that he didn't need to go, or not? >> Calvin L. Fox: No, Your Honor.
There is not a Mendenhall type warning, if you will, in this circumstance.
The defendant proceeded to the room, as did Sylvia Mendenhall, without discussion.
>> Unidentified Justice: Who had possession of the ticket?
>> Calvin L. Fox: The ticket was in... evidently was in Detective Johnson's possession at all
times, but it was never taken out of the-- >> Unidentified Justice: Once it was handed
over. >> Calvin L. Fox: --Pardon me?
>> Unidentified Justice: Once it was handed over.
Did he hand it to the police? >> Calvin L. Fox: Yes, Your Honor.
Yes, but the ticket actually never left the defendant's possession.
It was always right there with him, with Detective Johnson, as they were carrying out the discussion,
and as they went to the adjacent room. >> Unidentified Justice: Wait a minute.
You said never left his possession. I thought he handed it to the detective.
0 [Generallaughter.] >> Calvin L. Fox: Never left his presence.
Excuse me, Your Honor. >> Unidentified Justice: But it was in the
possession of the detective. Is that not correct?
>> Calvin L. Fox: That's correct, Your Honor. That's correct.
>> Unidentified Justice: So if he wanted to get on the airplane, he would have had a little
difficulty. >> Calvin L. Fox: He would first of all have
to ask to get the ticket back. >> Unidentified Justice: For his ticket back.
>> Calvin L. Fox: That's correct, which he did not do in this case, of course, but there
was also, as an indication of the nature of the transaction, the defendant indicated himself
that he understood all that was going on, and there was no physical contact at any time.
Detective Johnson, I think important to this Court's consideration here, testified that
he wanted to go to the adjacent room to avoid any embarrassment to the defendant and to
avoid any possible violence in the crowded airport area.
In the room, which was 40 feet away, they again asked him if they could... they initially
asked him for his consent to open his suitcase, and they told him again that they suspected
him of transporting narcotics. In response, the defendant produced a key,
unlocked one of the-- >> Unidentified Justice: Mr. Fox, let me ask
you another question. You mentioned the violence concern that the
officer expressed. Do you think the facts that were known to
the officer at the time he requested the ticket would have justified a frisk of the passenger
for weapons? >> Calvin L. Fox: --Yes, Your Honor.
I think in view of the-- >> Unidentified Justice: Did the officer frisk
the passenger? >> Calvin L. Fox: --No, Your Honor.
I think in view of the extremely agitated condition of the defendant, I think a frisk
would have been appropriate, but it was not done.
>> Unidentified Justice: He was carrying two suitcases, was he?
>> Calvin L. Fox: Yes, Your Honor, two suitcases. Onof the suitcases, he had the key.
He unlocked it. The other suitcase, he did not have he key,
but he said that they could go ahead and open it if they wanted to, and thereupon they opened
it, and it contained the marijuana. The entire transaction took ten to fifteen
minutes. The initial approach took a matter of only
a few minutes. >> Unidentified Justice: Well, suppose when
they first stopped him he had said no, I don't particularly care to talk to you, I don't
particularly care to identify myself, or hand you over my ticket?
Would he have been free to go? >> Calvin L. Fox: Detective Johnson specifically
testified that when people refused to talk to them, that if they don't have enough facts,
they let them go. >> Unidentified Justice: And if he had said,
when they asked him to go into the other room, he had said, no, I don't want to, the testimony
is, they would have let him go? >> Calvin L. Fox: Yes, Your Honor, that is--
>> Unidentified Justice: So he gets to the room, and they say, may we search your suitcase,
and he says, no, you may not. What is the testimony about that?
>> Calvin L. Fox: --There is no indication one way or the other, Your Honor.
Now, I was-- >> Unidentified Justice: Did the officers
at any time tell him that he was free to go? >> Calvin L. Fox: --No, Your Honor, there
was no specific advisement. >> Unidentified Justice: Did they also tell
him that he was free not to turn his ticket loose?
>> Calvin L. Fox: No, Your Honor, they did not specifically advise him of that.
>> Unidentified Justice: And did they also tell him he didn't have to go to the room
with them? >> Calvin L. Fox: No, Your Honor, they did
not specifically advise him of that. >> Unidentified Justice: They didn't tell
him any of the no's, did they? >> Calvin L. Fox: No, Your Honor, they did
not. >> Unidentified Justice: They only told him
the do's. >> Calvin L. Fox: Well, they asked him that,
these questions, Your Honor, and the trial court accepted that as a matter of fact, that
in fact the transaction was totally voluntary. >> Unidentified Justice: Well, you have two
armed men who say, would you mind coming along with me.
0 [Generallaughter.] Is there any evidence that he knew that they
were armed? And, I mean, how many people do you know wouldn't
go? >> Calvin L. Fox: Your Honor, I certainly
wouldn't have gone. >> Unidentified Justice: Would you go?
>> Calvin L. Fox: No, Your Honor. >> Unidentified Justice: You wouldn't go?
>> Calvin L. Fox: No. >> Unidentified Justice: With two armed men?
>> Calvin L. Fox: I didn't know... I would not have known they were armed.
>> Unidentified Justice: Have you ever tried it?
>> Calvin L. Fox: Pardon me? >> Unidentified Justice: Have you ever tried
it? >> Calvin L. Fox: I have been to the airport
and made observations of couriers. >> Unidentified Justice: These officers were
in plain clothes, weren't they? >> Calvin L. Fox: Yes, Your Honor.
>> Unidentified Justice: And the fact that they were armed wasn't immediately evident.
>> Calvin L. Fox: It was not immediately-- >> Unidentified Justice: I don't see how you
can miss it. But they did say they were narcotics agents.
>> Calvin L. Fox: --Yes, Your Honor. >> Unidentified Justice: Unarmed.
And unarmed, that is rather rare, isn't it? >> Calvin L. Fox: Your Honor--
>> Unidentified Justice: If you had been accosted by two narcotics agents who identified themselves,
would you assume they were armed or not? >> Calvin L. Fox: --Your Honor, I probably
would assume they were armed. >> Unidentified Justice: Well, go ahead.
Well, isn't it also true they showed them their badge?
>> Calvin L. Fox: Yes, Your Honor, that's correct.
>> Unidentified Justice: And they also said they had been expecting him, didn't they?
>> Calvin L. Fox: No, Your Honor. That was the defendant's testimony.
>> Unidentified Justice: Oh, I see. >> Calvin L. Fox: That was not accepted by
the trial court in this case. Your Honor, with respect to the voluntary
nature of this transaction, which seems to be the Court's concern, we would submit that
there was evidence which the trial court chose to believe in this case that the transaction
was a voluntary transaction. The defendant was a 22-year-old college educated
college graduate. He had a degree in communications.
The detectives approached him, asked him if he had a moment to talk.
The defendant voluntarily produced his identification and ticket.
He was asked if he would accompany them to a room a few feet away.
He was asked if he would consent to the search. The defendant produced a key for one bag,
and said it was all right. >> Unidentified Justice: The difficulty with
that submission is that the state courts found that he was detained against his will.
They found he was arrested. >> Calvin L. Fox: The state court certainly
did, but-- >> Unidentified Justice: Must we overturn
that to relieve you of this judgment? >> Calvin L. Fox: --The panel decision in
the trial court did not find that he was arrested, Your Honor.
What we are asking the Court to do is reinstate the panel decision and withdraw corresponding--
>> Unidentified Justice: Well, I know, but we have to disagree with the Florida Court
of Appeals. >> Calvin L. Fox: --Absolutely, Your Honor.
I think-- >> Unidentified Justice: They made a finding
based on the record, I guess. >> Calvin L. Fox: --They made a finding based
upon the fact that his luggage had been detained and--
>> Unidentified Justice: Well, whatever it was, you do say, turn that conclusion over.
>> Calvin L. Fox: --This was in no means an arrest, Your Honor.
That is what the Florida Third District en banc held, that it was an arrest.
>> Unidentified Justice: What precisely does the holding that something was an arrest mean?
Is that basically a factual issue or a legal issue, or is it a mixed question of fact and
law? >> Calvin L. Fox: It is a mixed question based
upon the facts presented. We would submit--
>> Unidentified Justice: Does it imply a determination by whoever is making the finding that subjectively
the person felt he was not free to go, or that objectively a reasonable person in his
position would not have felt free to go, which of those two?
>> Calvin L. Fox: --I think objectively, the reasonable person innocent of crime is the
standard which this Court has articulated. In particular, Your Honor, the defendant himself
said in the room that he was not under arrest. I think that totally belies the Third District
Court of Appeals conclusion that he was under arrest.
In particular, we would point to the fact that the numerous reasons announced by the
Third District Court of Appeals as reasons for the arrest were not thought of or dreamed
up by anybody in the trial court. In fact, the argument in the motion to suppress,
the defendant said he did what he did because they were police officers.
That is the only reason he offered whatsoever. He offered no other reason for the detention
which he claimed. We are here years later arguing matters which
the trier of fact, the defendant, and the police officers never thought of.
>> Unidentified Justice: But, Mr. Fox, just to interrupt for a moment, what is the court
that we should look to for the facts, the trial court or the appellate court?
It is a state court, and I suppose we have a limited right to disagree with them on the
facts, and the appellate court did say he was in fact not free to leave.
They said that unequivocally. >> Calvin L. Fox: The en banc court.
>> Unidentified Justice: Yes. >> Calvin L. Fox: Yes, sir.
>> Unidentified Justice: Are we bound by that? >> Calvin L. Fox: No, Your Honor.
I think the record in the trial court is what we are bound by here, as a matter of fact.
I think there was another thing that was determined by the Third District Court of Appeal en banc.
They kept calling it the police room. >> Unidentified Justice: What standard of
review do we follow in deciding whether or not a state appellate court was wrong in disagreeing
with the state trial court on the facts? Is it clearly erroneous, or substantial evidence,
or what is the standard we should apply? >> Calvin L. Fox: I think that if there is
substantial evidence in the trial court to base... for the trial court to have reached
the conclusion that this was a voluntary transaction, that that must be flagrantly erroneous, it
must be clearly erroneous, and must be a substantial departure from the constitutional law of this
Court. >> Unidentified Justice: Why?
Must a state have... must a state appellate court have some standard about overruling
its trial courts? What standard does the Constitution require?
Here surely the Florida appellate court overruled the district court.
>> Calvin L. Fox: Well, that-- >> Unidentified Justice: It may be that if
it applied the wrong legal standard in adjudicating the federal constitutional question, we could
certainly correct that, and even if it didn't apply the right... even if it applied the
right standard, we could disagree with it if it is a mixed question of fact and law.
>> Calvin L. Fox: --Absolutely, Your Honor, and we have argued vigorously in our brief
that the standard here is, as this Court found in Mendenhall, is that the circuit court of
appeal was totally mistaken in substituting its judgment for that of the trier of fact
as to the issues of fact before the trial court, and that is--
>> Unidentified Justice: Did the Court of Appeals of Florida have anything before it
that we haven't before us in this case now? >> Calvin L. Fox: --No, Your Honor.
>> Unidentified Justice: Didn't it have a concession that the state made at the oral
argument before that court which they refer to that the state conceded at oral argument
that the officers would not have permitted Royer to leave?
We don't have that before us, but they had it before them.
>> Calvin L. Fox: You have my offer in the brief, Your Honor, that in fact after an extensive
argument with Judge Schwartz, I stated to him that in fact I wasn't there, I don't know
what the officers would have done. >> Unidentified Justice: Are you telling us
there was no such concession? >> Calvin L. Fox: There was a concession,
but the concession was qualified in a certain context, and that context was that in fact
if-- >> Unidentified Justice: What I am suggesting
to you is, we have something different before us than they had before them.
They heard your argument there. We didn't.
>> Calvin L. Fox: --Yes, Your Honor, they do... they did, but I don't think... I don't
think the concession is a dispositive issue in this case.
>> Unidentified Justice: Why not? >> Calvin L. Fox: I think that the officers
would not have let him leave, Your Honor. I don't think that is... speculating what
they might have done is not the issue. The question is what did they do.
>> Unidentified Justice: And you think the issue is what a reasonable person would have
thought about whether he was free to leave? >> Calvin L. Fox: Innocent of crime.
>> Unidentified Justice: The officers may have decided in their own minds, we will never
let him go, but a reasonable person might have thought that he was free to go.
Is that your argument? >> Calvin L. Fox: Certainly it could be a
voluntary transaction, irrespective as to the officer's intent in the case.
They proceeded on the basis that it was a voluntary transaction, and Your Honors, I
think at the point where the defendant said, no, I don't want to give you consent to look
in my suitcase, and I want to leave, I think that circumstance is a different circumstance
than what transpired here. At that point, the officers would have had
to make a decision as to whether or not they could detain the defendant within the meaning
of the Constitution, but they never reached that point.
That's why my concession, which is put in the footnote in the Third District Court of
Appeal, if we accept the concession as it is stated facially, which I say is absolutely
incorrect, and not in proper context, that concession does not affect the outcome here.
The question is what the record shows as to what transpired in the... between the--
>> Unidentified Justice: Then the only reason we disregard this finding of the court that
you did make a concession is that you deny it here?
>> Calvin L. Fox: --No, Your Honor. That is not correct.
>> Unidentified Justice: Well, what else do we have?
>> Calvin L. Fox: I have only offered my statement of the context of that remark.
That is, I stated, if the defendant had refused consent, then the officer--
>> Unidentified Justice: What other reason do you have for us to disregard it?
>> Calvin L. Fox: --Because it's not relevant to a determination of the constitutional issues
here, Your Honor. >> Unidentified Justice: But the en banc court
did find that the defendant was under the reasonable impression that he was not free
to leave, not just a subjective impression, but on the objective facts, he was under a
reasonable impression that he was not free to leave.
So that in order to find for you, we must disagree with that mixed question of law and
fact. >> Calvin L. Fox: I... My analysis of the
Third District Court of Appeal decision is that they... the en banc decision, that is,
that they flatly decided that because his luggage had been detained, and that because
his ticket was still in the possession of Johnson, that in fact those factors created
a situation where he was not free to leave as a matter of law.
>> Unidentified Justice: But he was under the reasonable... as a matter of law, he was
under the reasonable impression he was not free to leave.
That is what they said. >> Calvin L. Fox: Flatly because of those
factors. >> Unidentified Justice: Mr. Fox, could you
turn to Page... if you have it before you, Page 49 of the supplemental appendix, which
I think contains the opinion of the D.C.... or perhaps you are familiar enough.
I just wanted to read you one sentence which I think is what the DCA said about this thing.
Do you call them DCA's in Florida? >> Calvin L. Fox: Yes, Your Honor, District
Court of Appeal. >> Unidentified Justice: The court said,
"Applying the test adopted in Frost, it is obvious that Royer, as he himself testified,
was under the reasonable impression that he was not free to leave the presence of the
officers. " and then I guess it is a cite to the Frost
opinion. Now, why did they incorporate the test adopted
in Frost in what would otherwise appear to be pretty much of a factual finding?
Did Frost say something about when you would find that someone was under a reasonable impression?
>> Calvin L. Fox: Frost went off and said, as a matter of law, when you keep a defendant's
ticket, he is absolutely detained. >> Unidentified Justice: So they were simply
applying Frost to this situation? >> Calvin L. Fox: They were applying that
ruling in Frost. Frost went on and made a number of other rulings,
but they were applying that... that is the single factor which they say... as a matter
of law, you are detained. Now, that conflicts with Elmore, and Elmore
just flatly says, just because the officer has gotten the ticket does not mean you are
detained. You are not detained until he leaves your
presence with that ticket, and Elmore is the leading case in the Fifth Circuit, and Frost
absolutely disregarded and severely criticized the Elmore court, which was brought to its
attention. That holding was brought to its attention.
I would like to reserve some time for rebuttal. Thank you.
>> Warren E. Burger: Mr. Frey. >> Andrew L. Frey: Thank you, Mr. Chief Justice,
and may it please the Court, this case has several issues in it that are of great importance
doctrinally to Fourth Amendment law and to federal law enforcement.
If you analyze the sequence of events that arose here, you begin with the initial contact
between the agents and Mr. Royer, and there is an issue whether at that point you had
a seizure of his person within the meaning of the Fourth Amendment or simply a contact
not regulated by the Fourth Amendment. That issue is important because if you had
a seizure, you can consider in the effort to justify that seizure only the facts known
to the agents at the time they first approached Mr. Royer, and not facts that they learned
during the initial interview with him. Now, when the situs of the transaction moved
from the concourse to the office nearby, you have a question whether that movement was
either fully voluntary and not subject to the Fourth Amendment, as was said in Mendenhall,
or a continuation of an investigative detention, or an arrest requiring probable cause.
Now, I would like to turn first to the arrest issue, because I believe that is what the
state court rested on. There is, of course, a final issue as to whether
the consent to the search of the suitcases was voluntary.
I won't address that. I don't think it was decided by the lower
court. The rationale of the lower court was a fruits
rationale, that even if the consent was voluntary, it was the product of an antecedent illegal
seizure of Mr. Royer's person. Now, I think it is crystal clear that the
lower court used the wrong test in identifying whether Mr. Royer was under arrest at the
time he was moved to the office and the consent was secured.
>> Unidentified Justice: You are talking about the court of appeals?
>> Andrew L. Frey: The District Court of Appeal, yes.
>> Unidentified Justice: En banc? >> Andrew L. Frey: En banc.
The opinion that is under review here. That opinion suggests that the criterion for
determining whether there was an arrest requiring probable cause is whether the suspect was
free to leave. As we have indicated in our brief--
>> Unidentified Justice: I thought that it said whether he reasonably believed he was
free-- >> Andrew L. Frey: --Well, if he reasonably
believed he was free to leave, yes. >> Unidentified Justice: --Well, that is quite
different. That is quite different.
>> Andrew L. Frey: Well, not for my point. I absolutely agree that the test is an objective
one, and not his subjective belief or the subjective intentions of the officer.
But the point that I am making here is that the test of free to leave is a test that distinguishes
not arrests from non-arrests, but Fourth Amendment seizures from non-seizures, and it is well
settled that Fourth Amendment seizures consist of two kinds of things, the Terry type investigative
detention or an arrest. One can be based on reasonable suspicion not
amounting to probable cause; the latter requires probable cause.
Now, in deciding whether what happened here was an arrest, it seems to me that it strains
the English language and the logical structure of Fourth Amendment analysis to call this
an arrest. If you view these events as occurring to an
innocent traveler who has mistakenly been seized upon as a possible drug courier by
the agents, it would be quite clear to that person that he had not yet been arrested,
that he was being detained for a brief course of investigation which would result in his
release if he knew he was innocent after the officers looked in the luggage.
It did not have the indicia of duration. If you compare it to Dunaway, you are talking
about moving him a number of miles to the police station, keeping him for an indefinite
period until he confessed. From the standpoint of Mr. Dunaway, even if
he were innocent, he would have perceived what happened to him, I think, quite clearly
as being... having the essential attributes of a formal arrest, which is the language
the Court used last term in Michigan against Summers.
Now, it is important in our view not to place undue emphasis in defining an arrest on the
factors that the lower court here, the en banc court relied upon, which is movement
or detention or extended custody beyond a momentary stop, because those factors may
arise in many contexts where we believe that they can be legitimately done as part of an
investigative detention, for instance, the detention of a suspected robber near the scene
of the robbery and the question whether he could be moved, let's say, a block to the
scene of the robbery for purposes of a show-up without having probable cause.
Now, let me say finally on the arrest issue that if you don't say this was not an arrest,
that does not leave the subject of investigative detentions unregulated under the Fourth Amendment.
An investigative detention, like an arrest, must be reasonable, and you have the ability
to say in this case that the detention under the circumstances may have been unreasonable,
but calling it an arrest, I think, would be most unfortunate.
>> Unidentified Justice: Mr. Frey, may I just ask you one question?
You say the court used the wrong test in the free to leave business for an arrest.
How would you phrase the test of an arrest? >> Andrew L. Frey: Well, I think that is a
difficult question. We know what a formal arrest is, but I think--
>> Unidentified Justice: Well, if that is the wrong test, you ought to know what the
right test is. >> Andrew L. Frey: --Well, I don't have to.
I can know what it isn't when I don't see it--
0 [Generallaughter.] >> Unidentified Justice: But you don't have
something-- >> Andrew L. Frey: --without knowing necessarily
exactly what-- >> Unidentified Justice: --You don't have
a test to propose to us that is better? >> Andrew L. Frey: --Well, I think what you
would look at is the duration and the reasonable understanding of the individual as to whether
he is likely to be charged with a crime or held for an indefinite period until he is
presented-- >> Unidentified Justice: Well, under that
test, if one believed the testimony that the man said... he must have thought he was going
to be charged with a crime, didn't he? >> Andrew L. Frey: --He couldn't have thought...
well, I think it is very important that you look at it from the perspective of an innocent
person, because the purpose of these rules is to protect against innocent people being
mistakenly seized upon and imposed upon by police officers.
>> Unidentified Justice: And so an innocent person who is just patient and knows if he
waits out several hours, say, in the room-- >> Andrew L. Frey: Oh, we are not--
>> Unidentified Justice: --he knows he will get free eventually.
Is that it? >> Andrew L. Frey: --Well, the purpose of
what... what occurred here, which took about ten to fifteen minutes, was to secure his
consent and then carry out on the basis of his consent the examination of his luggage.
If it had turned up nothing, he clearly would have been released.
>> Unidentified Justice: Arrest turns on what happens after the investigation is over?
>> Andrew L. Frey: But the suspect would know what would happen.
That is, that he would give his consent. There is nothing in this situation--
>> Unidentified Justice: In other words, it all... so you are backing into a corner where
it is the suspect's state of mind that determines whether the officer's conduct constitutes
an arrest, as I understand it. >> Andrew L. Frey: --It is not his subjective
state of mind. It is what a reasonable person in his situation
would perceive based on the officer's conduct. I think that is very important.
>> Unidentified Justice: You apparently agree that there was a seizure, then.
>> Andrew L. Frey: Well-- >> Unidentified Justice: Or at least you say
that if you accept the trial court or the court of appeal's finding, at least there
was a seizure. There may not have been an arrest.
>> Andrew L. Frey: --I... Well, let me say this.
We strongly disagree that there was a seizure at the point of initial contact.
>> Unidentified Justice: Well, all right, but you do agree that at least it is the right
test for the seizure, if a person-- >> Andrew L. Frey: The test for whether there
is a seizure is whether the person reasonably believes that he is free to leave.
>> Unidentified Justice: --That is the right test for seizure.
>> Andrew L. Frey: And in the circumstance, I think it is very important in the circumstance
in which there is no clarification either by a statement from the officer or an inquiry
from-- >> Unidentified Justice: But you wouldn't
state that even if... if there was a seizure here, under the right test, and you haven't
said there wasn't yet, you wouldn't think that would give the officers ipso facto the
right to search his luggage. >> Andrew L. Frey: --Certainly not.
The search has to be based on a consent. The issue in this case is whether the consent
was the fruit of an illegal seizure. Our position is that if at the time they moved
him to the office he had been seized, they had ample, reasonable suspicion--
>> Unidentified Justice: Well, let's just assume everybody agreed there was a valid
Terry stop. There is a quick frisk, and the fellow says,
I want to ask you a question. May I search your luggage?
The fellow says, sure, and right on the spot, right then, in 30 seconds, the luggage is
searched. You say that, A, there is a seizure, but B,
it is a completely consensual search. That is your--
>> Andrew L. Frey: --The search would have to be consensual in that case because there
was no warrant. >> Unidentified Justice: --Yes, and your only
difference is that they... instead of searching him on the spot, they moved him into another
room. >> Andrew L. Frey: We are saying that that
does not convert what would otherwise be a valid--
>> Unidentified Justice: But it certainly extends the seizure, doesn't it?
>> Andrew L. Frey: --It is a somewhat extended seizure beyond--
>> Unidentified Justice: And have we ever approved that kind of seizure?
Mendenhall. >> Andrew L. Frey: --Michigan against Summers.
>> Unidentified Justice: And Summers? >> Andrew L. Frey: Michigan against Summers.
Not really in Mendenhall, because Mendenhall rested on a consent rationale, but in Summers
quite clearly there was an extended seizure of, I think, quite considerably longer duration
than this, which involved moving him a distance equal, I assume, to the distance that he was
moved in this case. So I don't think that--
>> Unidentified Justice: Yes, but that was incident to the issue of the warrant.
>> Andrew L. Frey: --But the court's discussion first--
>> Unidentified Justice: And here's a person who came out of the house that was about to
be searched. >> Andrew L. Frey: --I understand, but if
you look at the court's analysis, the court begins by creating an analytical framework
within which the issue is to be decided. >> Unidentified Justice: There is nothing
like that here. >> Andrew L. Frey: We have exactly like that.
We have a reasonable suspicion justifying an investigative detention, an investigative
detention-- >> Unidentified Justice: Well, no one is...
we don't have any cases justifying this long of an investigative detention.
>> Andrew L. Frey: --Well, I am not sure what that... I think that the detention in Summers
was investigative. They were... the execution of the warrant
was an investigation, and it was an investigation which as it happened--
>> Unidentified Justice: I know, but it was at least authorized by a warrant, which is
the whole argument here-- >> Andrew L. Frey: --Well, there is nothing
in the warrant that-- >> Unidentified Justice: --that there was
no warrant for the search of the luggage. >> Andrew L. Frey: --The warrant did not authorize
the detention of Summers. I see my time has expired.
>> Warren E. Burger: Mr. Klein. >> Theodore Klein: Mr. Chief Justice, and
may it please the Court, Mr. Royer was walking in the airport, he was stopped by the police,
told that they suspected him of carrying drugs. He was moved into a converted storage closet.
They keep his tickets. They get his bags without his consent.
He is told by the police that they would like to look in his bags to either confirm or dispel
their suspicions, and he opens the bags. Under those circumstances--
>> Unidentified Justice: When you say he-- >> Theodore Klein: --The officer opens the
bags. >> Unidentified Justice: --With the consent
of your client. >> Theodore Klein: No, Your Honor.
We do not contend that there was any consent whatsoever in this case.
>> Unidentified Justice: How did he get the key?
>> Theodore Klein: Your Honor, the exact words of the agent when questioned about this issue
of consent was, we told them we suspected him of carrying narcotics, and we asked him
to open the bags to either confirm or dispel our suspicions.
Mr. Royer, without saying a word, took his key out of the bag... out of his pocket, opened
the bag, unlocked it, and then the officer actually did the opening of the bag.
>> Unidentified Justice: And you say that was not voluntary?
>> Theodore Klein: Pardon me? >> Unidentified Justice: You say that was--
>> Theodore Klein: We say that it was not voluntary, Your Honor.
We say... our position basically under these circumstances is that--
>> Unidentified Justice: --Don't you think he could have said, you can open my bag when
you get a warrant? >> Theodore Klein: --Your Honor, he could
have said very many things. >> Unidentified Justice: Well--
>> Theodore Klein: He could have said a number of things.
>> Unidentified Justice: --I am just posing one to you.
>> Theodore Klein: Pardon me? >> Unidentified Justice: I am just posing
one hypothetical, not many. >> Theodore Klein: All right, Your Honor.
If he had said that, then I think that there would be no consent at all, if he said you
can open my bags when you get a warrant. I think that would be quite clear that there
would be no consent whatsoever under those circumstances.
>> Unidentified Justice: Then we don't know what would have happened, whether he would
have been detained while they went to get a warrant, or whether they would have opened
it without a warrant. >> Theodore Klein: Your Honor, we can go on
the basis of either the state's concession at oral argument or as they now--
>> Unidentified Justice: The state's concession isn't evidence in the case.
>> Theodore Klein: --No, Your Honor, but I think that the state's argument that is set
forth in their reply brief points out specifically on Page 9, it said, what would have... what
would have happened after that is that certainly in that event the officers could have readily
sought other means of gathering information, including the use of a trained narcotics dog.
So I think that their basic argument is that irrespective of whether or not the consent
was ultimately granted, then this individual was not going anywhere until the police had
completed their investigation. Now, we maintain that either this situation
represents the most expansive Terry stop that has ever been recognized, and possibly the
most coercive consent that could ever be validated, or, as we say, that it was an illegal arrest,
and regardless of the nomenclature, it was tantamount to an arrest--
>> Unidentified Justice: Mr. Klein-- >> Theodore Klein: --Yes, Your Honor.
>> Unidentified Justice: --at what point in time did the arrest become illegal?
>> Theodore Klein: Your Honor, it is impossible to say at the precise moment when it occurred.
>> Unidentified Justice: Do you agree there was reasonable suspicion to ask questions?
>> Theodore Klein: Your Honor, I would concede that there was reasonable suspicion for the
officers to approach the defendant in the airport and to engage in a contact, and nothing
more. >> Unidentified Justice: What do you mean
by a contact? >> Theodore Klein: A contact is a voluntary
encounter, as the Court pointed out in the footnotes in Terry, and all of its progeny,
it is a voluntary encounter. The police are not isolated from citizenry.
They are permitted to talk to them and to go and engage and to see whether or not there
is something that arouses their suspicions any further.
>> Unidentified Justice: So there was a limited Terry type stop or seizure up to what point?
>> Theodore Klein: Your Honor, we maintain that there was a limited encounter that took
place in the form of the conversation, and then beyond that I think that it is unreasonable
to say that anybody who is approached by officers in a public place, regardless of whether they
are guilty or they are innocent, and the standard is an innocent person, we maintain that an
innocent person who is asked by officers to please show his driver's license and his ticket,
that it is unreasonable for-- >> Unidentified Justice: Do you think the
conversation became unlawful at the moment the request was made to see the driver's license?
>> Theodore Klein: --Your Honor, we maintain that at the point that they asked for... at
the point that he was asked for his driver's license and his ticket, at that juncture a
reasonable person would not feel that they were free to walk away.
It is natural for an individual, whether they are guilty or they are innocent, when they
are approached by a police officer, to produce those documents.
>> Unidentified Justice: Mr. Klein, in the Summers decision that has been mentioned,
it is perfectly clear that the individual there was not free to walk away.
>> Theodore Klein: Yes, Your Honor. >> Unidentified Justice: The rationale of
that case, as I understood it, was that under circumstances that create a reasonable suspicion,
the officers may detain an individual for a period of time.
>> Theodore Klein: Your Honor-- >> Unidentified Justice: Do you agree with
that or not? >> Theodore Klein: --Your Honor, Michigan
versus Summers was a highly limited situation, and I think that the underlying rationale
there was that the issue of probable cause had already been submitted to a neutral, detached
magistrate. >> Unidentified Justice: Probable cause to
detain the individual outside of his home? >> Theodore Klein: No, Your Honor.
It was probable cause for the search of the house, and under those circumstances, a limited
seizure detention of the individual was appropriate in order to ascertain if there was going to
be any evidence that was turned up in the house.
But I don't think the Michigan versus Summers reflects the proper model for determination
of the issues here. >> Unidentified Justice: Who was the person
detained in that case? >> Theodore Klein: It was the owner of the
house. >> Unidentified Justice: And that house was
covered by a search warrant? >> Theodore Klein: That's correct, and that
was really the underlying rationale, that a neutral, detached magistrate had issued
a search warrant, and I think the Court made it quite clear that that function should be
served by someone in that position rather than those who are on the front line such
as police who are often engaged in the competitive aspects of ferreting out crime.
>> Unidentified Justice: Refresh my recollection, Mr. Klein.
Did the Court in Sumner rely on Terry? That was my recollection.
>> Theodore Klein: Your Honor, it was a Terry extension.
>> Unidentified Justice: A Terry type limited seizure, was my recollection.
>> Theodore Klein: Your Honor, it was a Terry type limited seizure.
>> Unidentified Justice: Right. >> Theodore Klein: But it was based upon the
rationale of a neutral magistrate already having secured a warrant, and I think that
that is the way that that can be justified under those circumstances, and it was justified
on the basis that it was necessary in order to determine whether or not there was any
individual or any proof that might turn up during the course of the search itself, which
is far more intrusive in and of itself than the seizure of the individual.
Now, what our position is is that whatever Terry stop may have been justified in the
first instance in this matter became increasingly more custodial and ultimately culminated in
an illegal arrest. The traditional dividing point has always
been, of course, probable cause. The Terry case recognized an intermediate
step which was limited in nature and in purpose. It is between the contact and an arrest.
Articulable suspicion permits a limited seizure of the person, but it must be done with the
clear caveat that whatever intrusion takes place pursuant to this seizure must be limited
to that which made its initiation permissible in the first place.
So that asking a seized driver to get out of his car for the immediate safety of the
officer has been upheld. A patdown, as in Terry, has been upheld.
In Fuenta, Martinez, Martinez Fuenta, border stop inquiry with reference to immigration
status has been upheld, but none of those cases and none of the Terry line of cases
have expanded the intermediate step to the extreme here without either requiring probable
cause or calling it an arrest. So therefore the real question is, is what
happened here, up to the actual point of the search of the luggage, can it be justified
as a Terry stop. Now, first of all, I think it is important
to distinguish this case from the Mendenhall-- >> Unidentified Justice: Could I ask you what
I asked your colleague? >> Theodore Klein: --Yes, Your Honor.
>> Unidentified Justice: A voluntary stop, even, you would say that is a voluntary stop,
a quick patdown and one question, may I search your luggage.
The man says yes. The luggage is searched.
Wouldn't the only question be the question whether the consent was voluntary?
You wouldn't say-- >> Theodore Klein: I would have no problem
with that. >> Unidentified Justice: --And you wouldn't
say that just because there was a seizure, a momentary seizure under Terry, that his
consent to search would be an invalid fruit? >> Theodore Klein: I would have no problem
with that whatsoever. >> Unidentified Justice: And you think that...
Let's assume there was a valid Terry stop here initially.
Just assume that. >> Theodore Klein: Yes, Your Honor.
>> Unidentified Justice: If they had then asked him, may we search your luggage, and
he said yes, and they searched it right on the spot, no problem.
>> Theodore Klein: I have no problem with that whatsoever.
>> Unidentified Justice: It is just the movement into the other room?
>> Theodore Klein: Even under certain circumstances, a movement may be appropriate, but it was
the combination of factors here. >> Unidentified Justice: A movement could
be a lot less embarrassing. >> Theodore Klein: Your Honor, that is true,
but if that is the case, then every time that the police conduct a so-called Terry stop,
and they want to avoid embarrassment to the subject of the Terry stop, that would in their
rationale permit them to move him off to some isolated place.
>> Unidentified Justice: And then what? >> Theodore Klein: And then conduct whatever
it is that they want to do. >> Unidentified Justice: Is it just the lapse
of time, or is it the change of atmosphere which makes it reasonable for somebody to
think that he is still being detained? >> Theodore Klein: Your Honor, the lapse of
time is only one factor, and I don't think this is critical in this case.
The lapse of time has been held to be a long time to be reasonable.
In Michigan versus Summers, two hours was reasonable.
>> Unidentified Justice: But let's concede there was an initial seizure, as in my example.
>> Theodore Klein: Yes, sir. >> Unidentified Justice: A Terry stop and
seizure, and then he is just moved somewhere, and they ask him, may we search your luggage,
and he says yes. That consent then is bad, although it wouldn't
have been-- >> Theodore Klein: I'm sorry, I didn't follow.
>> Unidentified Justice: --A voluntary stop initially--
>> Theodore Klein: Your Honor-- >> Unidentified Justice: --and a seizure,
and they take him away to another place, and five minutes later they ask him, may we search
your luggage, and he says yes. You think that is necessarily a fruit of an
arrest? >> Theodore Klein: --I'm sorry, I didn't quite
follow the question. If there is an initial Terry stop--
>> Unidentified Justice: Well, if he can consent to searching his luggage initially--
>> Theodore Klein: --Yes, Your Honor. >> Unidentified Justice: --under a valid stop,
why can't he validly consent to it five minutes later?
>> Theodore Klein: He could, if the circumstances were right.
If they hadn't engaged in any more coercive conduct.
>> Unidentified Justice: Like what? >> Theodore Klein: Like taking his ticket,
as they did here. Like going and getting his bags and putting
them in the room, isolating him, as they did here, advising him, now, we suspect you under
these circumstances of carrying narcotics, we would like you to open the bag to see whether
or not there is anything in there. >> Unidentified Justice: And that makes it
more likely that he would consent to searching his bags?
>> Theodore Klein: I think it would, Your Honor.
I think that placing him in that kind of a coercive atmosphere makes it more likely.
I think it is unreasonable after an individual such as this has been removed to a room, they've
gotten his bags, they've gotten his ticket, they tell him, now, we suspect you of carrying
narcotics, and we would like you to open up the bag in order to confirm or dispel our
suspicions, I think it is unreasonable to think that anybody, guilty or innocent, can
simply say, well, I've had quite enough of this, gentlemen, I've got to go on my way.
>> Unidentified Justice: Is your conclusion then that his consent is coerced, or that
there is an arrest and a fruit of an invalid arrest?
That is a completely different thing. >> Theodore Klein: Your Honor, it's both.
It's both. I haven't gotten to the consent--
>> Unidentified Justice: Well, you don't need to get to the arrest then.
It is just a coerced-- >> Theodore Klein: --We don't have to.
>> Unidentified Justice: --It's just a coerced consent.
>> Theodore Klein: I believe that it is. I think that that would be the easiest way
to decide this, is that this was a coerced consent under the circumstances, and regardless
of whether or not we call it an arrest or not, it is a clear confinement which exceeds
the scope-- >> Unidentified Justice: Well, the court below
didn't decide that. >> Theodore Klein: --Your Honor--
>> Unidentified Justice: The court below said there was an arrest and a fruit of an invalid
arrest. >> Theodore Klein: --Your Honor, I think that
the exact-- >> Unidentified Justice: Isn't that what it
said? >> Theodore Klein: --Your Honor, I think that
the exact holding of the court-- >> Unidentified Justice: Well, they said there
was an arrest. >> Theodore Klein: --They said that regardless
of the exact nomenclature employed to describe this situation, it is unimportant.
>> Unidentified Justice: Where are you reading from in the supplemental appendix?
>> Theodore Klein: I don't have the supplemental appendix.
I am reading under the section that is Consent Invalid, and then then it says... Royer Involuntarily
Confined is the first section, and then the second section, Number Two, it's Page 50.
>> Unidentified Justice: No Probable Cause? >> Theodore Klein: Pardon me?
That's correct. The section that says No Probable Cause.
>> Unidentified Justice: It says Royer had been placed under arrest, no probable cause.
>> Theodore Klein: Yes, Your Honor. It says,
"For all practical purposes, he had been placed under arrest when the alleged consent was
given. " "The exact nomenclature employed to describe
this situation is, however, unimportant. " I don't think that the term "arrest" should
be dispositive of the situation, because of his precise situation.
>> Unidentified Justice: I know, but we have held that even so-called voluntary consents
or voluntary statements after an invalid arrest are still fruits--
>> Theodore Klein: Yes, Your Honor. >> Unidentified Justice: --and inadmissible.
>> Theodore Klein: Yes. >> Unidentified Justice: Without finding them
coerced. >> Theodore Klein: Yes, Your Honor, I agree.
>> Unidentified Justice: What is your submission here?
Is it that the consent was coerced and therefore invalid?
>> Theodore Klein: Your Honor, the consent... there was no consent, is our position, is
therefore invalid, but irrespective of that, it was a Terry stop that exceeded the scope
of what is reasonably necessary. >> Unidentified Justice: And thereupon became
an arrest. >> Theodore Klein: Yes, Your Honor, it did,
and in connection with that, the Court's inquiry of the government as to when a seizure becomes
an arrest, and the government was unable to come up with a clear definition.
Well, I like the definition that the government itself gave, and that was in their brief in
this case. They advert to their brief in the Michigan
versus Summers case, and on Page 10, they point out in their brief that after saying
that Dunaway made it clear that the formal label is not dispositive, that
"probable cause is required whenever there is a sufficiently substantial invasion of
the suspect's freedom of movement. " "What constitutes a sufficiently substantial
deprivation of liberty to require probable cause remains to be fleshed out. "
"If, however, a detention is deemed to be of sufficient severity to fall within this
category, its lawfulness will not be evaluated by reference to a general reasonable analysis,
but will ordinarily depend solely upon the existence of probable cause. "
That's what we have here, Your Honor. I maintain that the Terry stop exceeded the
initial reason for the intrusion. It was unnecessary to expand it to the point
that it was. It was unnecessary under these circumstances,
and therefore constitutionally unreasonable. >> Unidentified Justice: You indicated that
you thought the initial stop was perfectly valid, the stop and the inquiry.
Is that right? >> Theodore Klein: Yes, Your Honor.
>> Unidentified Justice: Now, it was about roughly 15 steps from where they then stood
to the room. At what point did he... you say he became
under arrest? The first step, fifth step, tenth step?
>> Theodore Klein: No, Your Honor. I would say that by the time he was asked
for his consent, he was under arrest, and I think that it is impossible to single out
any of those crucial elements that I have adverted to, and the court, the Florida court,
the appeals court did not try to distinguish between those crucial elements, and I think
that the government is incorrect when they say that the sole basis of the Florida court's
position about an illegal arrest was based upon his... the reasonable apprehension that
he was not free to go. That was merely one of the factors that the
Florida court adverted to in making its ultimate determination that an arrest had occurred.
It specifically cited the other instances of misconduct indicating that the man was
not free to go, such as the... and that he was in effect in a classic case of imprisonment.
>> Unidentified Justice: You haven't argued, unless I have missed it, that there was not
even any grounds for a valid Terry stop here. >> Theodore Klein: No, Your Honor, I have
not as yet, but I will be glad to address that point.
>> Unidentified Justice: Well, that is part of your submission, I take it.
>> Theodore Klein: Yes, Your Honor, and on that particular point, what our problem is
is that this is... this Terry stop was based upon the so-called profile, drug courier profile,
and the government has submitted in their orange book to the Court a compilation of
the law and the cases, and they point out, for one thing, that there is no national profile,
and the reason for this is that a perusal of the cases that they have in their book
shows that all of the elements are contradictory. In one case, it is the last passenger off
the plane. The next time, it is the first passenger.
No bags, heavy bags, or empty bags. Walking very fast, very slow.
A one-way ticket, a round-trip ticket. >> Unidentified Justice: They are always nervous.
>> Theodore Klein: They are always... not always.
Sometimes nervous. Nervousness seems to be a factor in Atlanta
but not necessarily in Los Angeles. 0 [Generallaughter.]
>> Unidentified Justice: What point are you trying to make.
>> Theodore Klein: Pardon me? >> Unidentified Justice: What point are you
trying to make? >> Theodore Klein: The point that I am trying
to make is that it is very much like analyzing why the stock market has gone up the previous
day. It permits the police to take what is essentially
a hunch. They select out the factors that fit.
They give it a label, and they mask what is essentially a hunch and essentially arbitrary
action-- >> Unidentified Justice: What is arbitrary
about following a hunch? >> Theodore Klein: --There is nothing.
>> Unidentified Justice: I personally am not persuaded that police officers enjoy running
around after red herrings or running after people who really aren't going to provide
any leads or clues. Shouldn't the courts give some deference in
this situation to the considered experience of law enforcement personnel, just on the
basis that they are the ones on the scene, and probably know a little bit more about
it than we do? >> Theodore Klein: Your Honor, in some instances,
that's true. First of all, though, we are dealing with
a particular case, and here, this case, the officer had all of one month's experience.
He had been on the job since November. This was January.
>> Unidentified Justice: Well, but the profile was presumably devised by people other than
him. >> Theodore Klein: All right.
Yes, Your Honor. >> Unidentified Justice: What does the one
month's experience have to do with it? >> Theodore Klein: All right, Your Honor,
because we are talking about what essentially must be individualized suspicion, and a perfect
example here is that some of the characteristics that were adverted to by the officer in his
testimony as to why he suspected this person was because he was carrying American Tourister
luggage. He said he was carrying one old suitcase,
one new suitcase, and he put them up near the counter, and most people carry their luggage
with them. Now, the profile has its place.
It is an excellent administrative tool for the police to use to single out possible suspicious
activity for further investigation, but it should not be used as a justification for
intruding on the Fourth Amendment. >> Unidentified Justice: Why not?
>> Theodore Klein: Because the fact of being part of a profile in and of itself should
not be used in connection with a Terry stop as a substitute for individualized suspicion.
I think every case since Terry has talked about individualized suspicion as to why it
was that a particular element in the profile was or was not--
>> Unidentified Justice: Supposing the government could produce evidence, which I take it it
hasn't here, that if each of these elements of the profile when they were run down, 70
percent of the follow-ups indicated a person who was probably guilty of some offense and
30 percent didn't. Now, would you say that an officer couldn't
simply apply that profile across the board if it were documented in that way, without
making any further individualized determination? >> Theodore Klein: --I still think that he
needs to make an individualized determination in every instance.
I think that that sort of statistical approach-- >> Unidentified Justice: Well, what if the
individualized determination he makes was that this person whom I am following now exhibits
eight of the ten characteristics that the profile says to look for, and each of those
ten characteristics is documented by experience? >> Theodore Klein: --I still think, Your Honor,
under those circumstances, that he has to be able to articulate whether or why any particular
item of behavior, regardless of whether it is on or off the profile--
>> Unidentified Justice: Any particular item or the combination of all of them?
>> Theodore Klein: --He can use a combination of all of them, but he still must articulate
why it is that he believes that these things lead him to suspect that a crime is being
committed. >> Unidentified Justice: Why not past experience?
If 80 percent of the follow-ups in the past of people with a particular kind of luggage
have indicated that you find a guilty person, why isn't that a perfectly adequate basis
of using that in the case of an expert who comes along?
>> Theodore Klein: Your Honor, I still think that under those circumstances, that there
has got to be some showing that in this particular case that they suspect him of a crime, because
each of those things are innocent in and of themselves.
>> Unidentified Justice: Of course, but that is a very fallacious approach of the undistributed
middle, which really doesn't mean anything in this kind of situation.
You say... You keep referring to what you think and what you believe.
>> Theodore Klein: Yes, Your Honor. >> Unidentified Justice: What cases from this
Court support your view that a profile of this sort is not usable in any circumstances?
>> Theodore Klein: Your Honor, I think that the concurring opinion in the Mendenhall case
in Footnote Number 6, Justice Powell specifically indicated that a mere profile match in and
of itself would not take the substitute... it would not be a substitute for that sort
of individualized suspicion. Its appearance on the profile may or may not
have significance, but the mere fact that it does appear on the profile cannot be used
as a substitute to make the determination that in fact a suspicion of a crime has been
committed. There still must be something that is articulated
as to why-- >> Unidentified Justice: On your approach,
a profile has no use whatsoever. >> Theodore Klein: --No, I believe that it
has a very, very useful approach, to single out from the very large universe of people
those whom there is some unusual activity that would cause the police then to go and
conduct a further inquiry. >> Unidentified Justice: It worked pretty
well here, didn't it? >> Theodore Klein: Pardon me?
>> Unidentified Justice: It worked pretty well here.
>> Theodore Klein: Well, I think we must look at things at the point prior to the search.
Otherwise... we can't look at it afterwards as a bootstrapping sort of thing, because
in every case in which there is a... a criminal case in which there is a motion to suppress,
it means that it works, but the determination still must be made prior to the actual--
>> Unidentified Justice: You were emphasizing the individual components here some time back.
>> Theodore Klein: --Yes, Your Honor. >> Unidentified Justice: It turned out that
one of these suitcases weighed 65 pounds. >> Theodore Klein: No, they were 65 together,
Your Honor. >> Unidentified Justice: Together?
>> Theodore Klein: It was an aggregate. Yes.
>> Unidentified Justice: That is quite a lot for two suitcases for the size indicated by
this record. >> Theodore Klein: They were heavy suitcases,
Your Honor. There is no doubt about it.
But the fact that somebody is carrying heavy suitcases does not give one the kind of articulable
suspicion that a crime is being committed. >> Unidentified Justice: Not standing alone.
>> Theodore Klein: Pardon me. >> Unidentified Justice: Not standing alone.
But it is one of the factors, you would concede. >> Theodore Klein: Your Honor, it is a factor,
but it still does not show why a crime has been committed.
The fact that it is American Tourister, or that it is a heavy suitcase, the fact that
the person looked nervous... and by the way, there is a case that says... pointed out as
one of the characteristics that the defendant looked very calm, so again, there is a contradiction
to every single one of these items that occurs. >> Unidentified Justice: Well, then I say
again that in your position the profile is perfectly useless.
>> Theodore Klein: No, I believe that it is very useful for the police to go and to make
the initial contact so that they don't have to just select people out at random to see
whether or not they are drug couriers in an airport, and at that point, then, they would
go and make their contact. Now, if the state and the government are fearful
of a person getting away with crime, the police don't have to shrug their shoulders and simply
walk away. They can still limit the intrusion to the
reason within the Terry standards. >> Unidentified Justice: You are not suggesting
that they have to have reasonable suspicion to go up and ask the fellow just to--
>> Theodore Klein: No, I am not suggesting that at all, Your Honor.
They could do it-- >> Unidentified Justice: --So, let's assume
on these facts you applied the rationale of the plurality in Mendenhall.
>> Theodore Klein: --Yes, Your Honor. >> Unidentified Justice: Where would you be
then? >> Theodore Klein: I'm sorry, I didn't understand.
>> Unidentified Justice: Justice Stewart's opinion in Mendenhall.
>> Theodore Klein: Yes, Your Honor. >> Unidentified Justice: Apply that to this
case. >> Theodore Klein: If you would apply that
to this case, then there would be no seizure at all in the first instance, but--
>> Unidentified Justice: The facts aren't really different from Mendenhall, are they?
>> Theodore Klein: --Yes, Your Honor, there are.
>> Unidentified Justice: Why was there more of a seizure here than there was in Mendenhall?
>> Theodore Klein: First of all, the ticket was handed back in Mendenhall.
The trial court made a specific finding in Mendenhall that Mrs. Mendenhall had agreed
to go to the room in a spirit of cooperation. She was never told--
>> Unidentified Justice: That's a finding. I'm talking about the facts.
>> Theodore Klein: --All right. She was never told either out in the concourse
or in the office that she was suspected of carrying narcotics, so that there is a focus
issue that is involved there. There was no retrieval of her luggage.
She was advised in the room of her right to refuse.
>> Unidentified Justice: Well, let's assume there was no reasonable suspicion in this
case, there was just the profile, and assume we agreed with you that that doesn't amount
to reasonable suspicion, but nevertheless it did sort this person out.
>> Theodore Klein: Yes, Your Honor. >> Unidentified Justice: So you go up to him,
and you say, may I ask you some questions? We are narcotics officers, and we suspect
you of carrying narcotics. We want to ask you one question.
May we search your luggage, and he says yes. >> Theodore Klein: Again, I still would have--
>> Unidentified Justice: You don't have any problem at all.
>> Theodore Klein: --If that took place out in the concourse, I would have no problem
with it, and in fact I think that if-- >> Unidentified Justice: So, next question.
>> Theodore Klein: --Yes, sir. >> Unidentified Justice: He goes up to him,
we are narcotics officers, we suspect you of carrying narcotics, but we have no articulatable
suspicion about that. One question.
Would you come over and let us search your luggage in this room over here?
And he says yes. >> Theodore Klein: Your Honor, now we are
beginning to build hypothets that I can't answer, because I think that it may or may
not be. >> Unidentified Justice: Well, he doesn't
say... now they just say, will you come over to this room, and he says yes, and he gets
over there, and they say, may we search your luggage.
>> Theodore Klein: Then we are closer to a Mendenhall situation.
>> Unidentified Justice: Now, Justice Stewart said that is just complete consent all the
way down, no seizure, no nothing. >> Theodore Klein: Your Honor, then perhaps
we get closer to a Mendenhall situation, but that's not the situation that we have here,
and I think again in order to determine-- >> Unidentified Justice: Well, one of the
government's arguments is that it is. >> Theodore Klein: --Your Honor, that's correct,
but I think in order to determine these issues of the scope of the Terry seizure, that we
have got to go back and look at the Terry poll stars, and see what it is that is sought
to be accomplished, and one of the things that must be determined is how far we can
extend this Terry stop without running afoul of the original principle.
The whole object of all of the Terry cases, including the investigative stop cases, is
that the scope of the intrusion must be limited to the reason for the initial seizure, and
that is what justified the Terry rationale in the first place.
Now, if we limit that under these circumstances to the Terry seizure, then I think it is clear
that whatever occurs should occur out there in the concourse.
It is constitutionally unreasonable to take all the--
>> Unidentified Justice: Why should the test of a seizure be what the seizee reasonably
thought about whether he was free to go or not?
>> Theodore Klein: --Why should it be? >> Unidentified Justice: Yes, because on that
basis, you probably will never permit the police to go up to anybody and say, may I
ask you a question. >> Theodore Klein: Your Honor, I agree, but
that is what the Court has said, that that is the test, because I don't think there's
any way-- >> Unidentified Justice: Why shouldn't it
rest on some act of compulsion or show of force by the police?
>> Theodore Klein: --Your Honor, the cases have said the question is whether or not the
"seizee" is under the reasonable belief that he was not free to walk away.
I think it's a very, very difficult rationale to apply, but nevertheless that is the standard
that this Court has adopted-- >> Unidentified Justice: In what cases was
that? What case?
>> Theodore Klein: --Your Honor, I think that it's a number of cases that follow Terry,
and I think that under... I can't recall exactly which of those cases, but the question has
always been stated under whether or not the seizee--
>> Unidentified Justice: In one case, have five Justices agreed to that?
It was Justice Stewart's opinion joined by one other Justice in Mendenhall.
>> Theodore Klein: --All right. My own feeling is that that is an unworkable
standard, that it ought to be a standard as to whether or not... whether or not some act
is done by the police officer that would reasonably indicate that the defendant was not free to
go, not the subjective standard of what was in the defendant's mind, because that's an
impossible standard to apply, and I think that looking at it from the standpoint of
the law enforcement authorities rather than from the subjective standard of the defendant
makes a lot more sense. And looking at it from that standard, if a
police officer asks an individual on the street or anywhere, can I see your license, it is
unreasonable to believe that the person thinks that he can freely walk away without giving
up his license or without arousing further suspicion.
>> Unidentified Justice: Well, there is one way to find out, and that is by saying no.
>> Theodore Klein: That's correct, Your Honor, but again, we are talking about what would
happen afterwards on the basis of a hypothetical. Now, if the state and the government are fearful
of a person in Mr. Royer's position getting away with crime, the police do not have to
shrug their shoulders and walk away. They can still limit the intrusion to the
reason within the Terry standards and yet carry on with a number of efficacious techniques.
They can continue the brief seizure on the spot.
They can continue the questioning. They can ask there if he would consent.
They can check with the ticket agent. They can do a dog sniff of his luggage.
Also, they know that he's getting on a plane, and they know where he's going to--
>> Unidentified Justice: How long can they continue the questioning?
>> Theodore Klein: --Pardon me? >> Unidentified Justice: How long can they
continue the questioning? >> Theodore Klein: How long?
Your Honor, I think that the standard just has to be one of whether or not it is reasonable,
and I don't think that they can-- >> Unidentified Justice: Can they retain the
man's ticket while they do the questioning, in your view?
>> Theodore Klein: --Your Honor, if it's a seizure on the spot, I think that they could
retain his ticket. That would be a means of holding him on a
leash, because if there is a proper Terry seizure in the first instance, then I would
think that under those circumstances it would be reasonable to hold their ticket while they
are questioning him on the spot, but if they are going to attempt to remove him to some
other place, then in order to expand that, they've got to have some legitimate reason
why it is necessary to go to another place other than the general law enforcement objectives.
>> Unidentified Justice: Do I understand you to say, then, that if they had asked him in
the terminal rather than in the office to open the bags, you'd have no objection?
>> Theodore Klein: I think that that would be appropriate under those circumstances.
They can ask for a consent there, but it was merely the coercive elements that inhered
in the situation in this instance. Also, they know... I started to give some
reasons as to why it was that they could conduct it in another manner.
He is getting on a plane for New York, so they know very well where he is going to be
for the next two and a half hours. And the agent testified in this case that
he is in constant communication with agents in every other city throughout the country,
checking on passengers coming and going in these instances, so it is very easy for them
to do what they have to do. >> Unidentified Justice: The logical result
of what you say, that they could have required him to open his suitcases right on the spot--
>> Theodore Klein: Yes, Your Honor. >> Unidentified Justice: --in your response
to Justice Stevens, but because he takes 15 steps to save him some public embarrassment,
then they lose some rights? >> Theodore Klein: Your Honor, it is not just
the movement of the 15 steps. First of all, they put him into a converted
storage closet. It could be five steps, but once they move
behind a door which is only three inches wide-- >> Unidentified Justice: You call it a closet.
How big was the room, as long as you have defined it as a closet?
>> Theodore Klein: --It was defined by the police as a converted storage closet.
The Court of Appeals pointed out that the officer did testify, contrary to what the
state says, that it was a police room. It was outfitted with a desk and two chairs,
and it's impossible to say. There's nothing in the record to indicate.
>> Unidentified Justice: A big closet. >> Theodore Klein: Pardon me?
>> Unidentified Justice: The size of a closet with a desk and two chairs?
>> Theodore Klein: Yes. >> Unidentified Justice: The situation would
be different in your view if it were as large as this courtroom?
>> Theodore Klein: Your Honor, I think that that would be an element, but I don't think
that it is dispositive at all. I think that the coercive elements that all
combined in this case added up to the situation that existed here.
>> Unidentified Justice: Well, let's assume that the officers said, we hereby arrest you,
and then they asked-- >> Theodore Klein: It could be an illegal
arrest. >> Unidentified Justice: --Well, let's assume
there was even probable cause. >> Theodore Klein: Yes, Your Honor.
>> Unidentified Justice: And they say, may we search your suitcase, and he says yes.
There is nothing wrong with that consent necessarily, is there?
>> Theodore Klein: I would say that there is, Your Honor.
>> Unidentified Justice: There was probable cause.
>> Theodore Klein: If there was probable cause, even... oh, if there was probable cause, no.
I would say not. Under Schneckloth it would be an acceptable...
it would be an acceptable standard. >> Unidentified Justice: Even if the case
turned on the voluntariness, it could be found completely voluntary.
>> Theodore Klein: That's correct, Your Honor, it could.
>> Warren E. Burger: Very well. Mr. Fox, do you have anything further?
>> Calvin L. Fox: Yes, Your Honor, I have-- >> Warren E. Burger: You have six minutes
remaining. >> Calvin L. Fox: --Yes, Your Honor.
Thank you. First of all, Your Honor, we certainly do
not abandon any arguments we raise in our extensive brief, including the good faith
exception. I would like to address why the voluntariness
issue in this Court should be overturned, and that is, this Court's various holdings,
and we quote United States versus Price that a finding of consent should not be overturned
unless it is clearly erroneous. The evidence in this case is not so overwhelming
that either this Court or the District Court of Appeal en banc should overturn both the
panel opinion and the trial court on the question of voluntariness.
The defendant just stated that this was a police room, and the witnesses so testified.
In fact, Johnson was asked, "Is that an official police room. "
"No, it's a closet that has shelves on one end. "
"Do you have any police paraphernalia whatsoever in that room? "
"No, because it's an area that we really couldn't secure very well. "
The police room is something that the Third District called this room.
It is not something that it was in fact. With respect to why the defendant was stopped...
assuming the defendant was detained... excuse me... when he was taken to the room, he was
not detained because he had American Tourister luggage, Your Honor.
He was detained because of numerous facts and circumstances, not the least of which
included the profile as a written indication of the officers' experience, and particularly
his efforts to avoid detection as are observed by the officers, and particularly Johnson's
observations of the defendant's counter-surveillance, if you will.
Certainly, normal airline passengers don't conduct counter-surveillance to see if they
are being observed. >> Unidentified Justice: When did they discover
that he was using a false name, at least a different name?
>> Calvin L. Fox: The alias was discovered at the very moment of the initial contact
with the defendant, Your Honor, and that alias, Elmore, and Partino, cited in our brief, Elmore
said, "It would be a failure of duty had the federal
agents not detained Elmore at that point to investigate him further. "
Now, that is detained to investigate further, which, assuming this was a detention, that
it was absolutely lawful under Elmore. Elmore also said,
"Upon these facts, profile or no profile, the officers also had a right to ask the defendant
if he would consent to the search of his luggage. "
Patino reached exactly a similar result. With respect to the test to be applied, Your
Honors, there's a two-part test here that we've argued in our brief.
First of all, Terry and Mendenhall held that there is no detention unless there is physical
force or a show of authority, and neither one of those circumstances was present in
this case. The second--
>> Unidentified Justice: Didn't they say they were officers?
Isn't that... They showed him a badge? >> Calvin L. Fox: --That is not a show of
authority, Your Honor. >> Unidentified Justice: Well, what is it
a show of? >> Calvin L. Fox: It's a show of the officers
not wanting to have a nervous courier react to the fact that he was about to be taken
out in the Everglades and left in the trunk of an automobile.
These officers identify themselves for that specific reason, that the courier realizes
that he is not being trailed by somebody else. >> Unidentified Justice: Then you must not
object to the word "authority". You want to show them the authority to protect
them. >> Calvin L. Fox: You want to show them the
authority to-- >> Unidentified Justice: You want to show
them authority. >> Calvin L. Fox: --alleviate their fear that
somebody who is not lawful and who-- >> Unidentified Justice: Well, do you want
to show them authority or not? >> Calvin L. Fox: --It is not a show of authority.
Merely identifying oneself as a police officer is not a show of authority.
>> Unidentified Justice: How does an officer make a show of authority?
>> Calvin L. Fox: Pardon me? >> Unidentified Justice: How does an officer
make a show of authority if he doesn't by identifying himself and showing the authorization
to act as an officer? >> Calvin L. Fox: He does it by announcing
to the defendant, you stay here, some sort of announcement, some sort of indication to
the defendant. >> Unidentified Justice: They asked him to
open the baggage. Would that be a show of authority?
>> Calvin L. Fox: Merely a request to open the bag is not a show of authority, Your Honor.
This Court has so held in Schneckloth. If this Court accepts that announcement of
identification is a show of authority, then we are out the window on the mere contact
concept, which this Court accepted in Mendenhall. >> Unidentified Justice: Your friend has conceded
that they could have told him to open the bags immediately on the spot.
>> Calvin L. Fox: Yes, Your Honor. His whole thing apparently rests at this point
on whether or not the movement to the room is some sort of detention.
>> Unidentified Justice: Is that a show of authority or an exercise of authority?
>> Calvin L. Fox: No, Your Honor, I think it was merely a request.
>> Unidentified Justice: Well, there still could be a difference between asking a person,
may we search your luggage, and saying to him, stay right here, now, open your luggage,
we are officers. >> Calvin L. Fox: Yes, Your Honor.
>> Unidentified Justice: That's an order. >> Calvin L. Fox: That's a different circumstance.
Exactly. That is a show of authority.
Now, the second part of the-- >> Unidentified Justice: That is an exercise
of coercion. >> Calvin L. Fox: --Stay right here, we are
going to get a warrant, that certainly is an exercise--
>> Unidentified Justice: Well, or saying, now, open your luggage, we order you to open
your luggage. >> Calvin L. Fox: --Assuming that had been
held in the trial court, that would be an exercise of authority.
Your Honor, there is a second part to our analysis here as to the test to be applied
in this case, and that is, there must be a balancing test between the public's interest
in... the compelling public interest in law enforcement and the de minimus intrusion which
is present in this case, and we would urge this Court to follow the balancing test as
articulated in Michigan versus Summers. Thank you.
>> Warren E. Burger: Thank you, gentlemen. The case is submitted.
>> Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.