U.S. Supreme Court Massachusetts v. Upton, 466
U.S. 727 (1984) Massachusetts v.
Upton No. 83-1338 Decided May 14, 1984 466
U.S. 727 ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS Syllabus City police officers, executing a search warrant for a motel
room reserved by Richard Kelleher, discovered several items of
identification, including credit cards, belonging to two persons
whose homes had recently been burglarized, but other items taken in
the burglaries, such as jewelry, silver, and gold, were not found.
About three hours later, one of the officers received a phone call
from an unidentified female who told him that a motor home
containing stolen items, including jewelry, silver, and gold, was
parked behind respondent's home; that respondent had purchased the
items from Kelleher; and that respondent was going to move the
motor home because of the search of the motel room. The caller also
stated that she had seen the stolen items, but refused to identify
herself because "he'll [referring to respondent] kill me." When the
officer told the caller that he knew her name because he had met
her and she had been identified as respondent's girlfriend, the
caller admitted her identity and told the officer that she had
broken up with respondent and "wanted to burn him." Following the
call, the officer verified that a motor home was parked on the
property and, while other officers watched the premises, prepared
an application for a search warrant, setting out the information
noted above in an affidavit and also attaching police reports on
the two prior burglaries and lists of the stolen property. A
Magistrate issued the warrant, and a subsequent search of the motor
home produced the items described by the caller and other
incriminating evidence. The discovered evidence led to respondent's
conviction on multiple counts of burglary, receiving stolen
property, and related crimes. However, the Massachusetts Supreme
Judicial Court held that the warrant violated the Fourth Amendment
because it was not supported by a sufficient showing of probable
cause, and reversed respondent's convictions. It interpreted Illinois v. Gates, 462 U. S. 213 , as
merely refining the previous "two-pronged" test -- which related to
an informant's "basis of knowledge" and its "reliability" -- by
allowing corroboration of the informant's tip to make up for a
failure to satisfy the two-pronged test. The court concluded that
the two-pronged test was not met here, and that there was
insufficient corroboration of the informant's tip. Page 466 U. S. 728 Held: The two-pronged test was rejected in Gates, which instead held that the Fourth Amendment's
requirement of probable cause for the issuance of a warrant is to
be applied, not according to a fixed and rigid formula, but rather
in the light of the "totality of the circumstances" made known to
the magistrate, and which emphasized that the task of a reviewing
court is not to conduct a de novo determination of
probable cause, but only to determine whether there is sufficient
evidence to provide a "substantial basis" for the magistrate's
decision to issue the warrant. When properly examined in light of Gates, the officer's affidavit in this case provided a
substantial basis for the Magistrate's issuance of the warrant.

															Certiorari granted; 390 Mass. 562, 458
N.E.2d 717 , reversed and remanded.

															PER CURIAM.

															Last Term, in Illinois v. Gates, 462 U.
S. 213 (1983), we held that the Fourth Amendment's
requirement of probable cause for the issuance of a warrant is to
be applied, not according to a fixed and rigid formula, but rather
in the light of the "totality of the circumstances" made known to
the magistrate. We also emphasized that the task of a reviewing
court is not to conduct a de novo determination of
probable cause, but only to determine whether there is substantial
evidence in the record supporting the magistrate's decision to
issue the warrant. In this case, the Supreme Judicial Court of
Massachusetts, interpreting the probable cause requirement of the
Fourth Amendment to the United States Constitution, continued to
rely on the approach set forth in cases such as Aguilar v.
Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U.
S. 410 (1969). 390 Mass. 562, 458
N.E.2d 717 (1983). Since this approach was rejected in Gates, we grant the petition for certiorari in this case
and reverse the judgment of the Supreme Judicial Court.

															At noon on September 11, 1980, Lieutenant Beland of the Yarmouth
Police Department assisted in the execution of a search warrant for
a motel room reserved by one Richard Kelleher at the Snug Harbor
Motel in West Yarmouth. The search produced several items of
identification, including Page 466 U. S. 729 credit cards, belonging to two persons whose homes had recently
been burglarized. Other items taken in the burglaries, such as
jewelry, silver, and gold, were not found at the motel.

															At 3:20 p. m. on the same day, Lieutenant Beland received a call
from an unidentified female who told him that there was "a motor
home full of stolen stuff" parked behind #5 Jefferson Ave., the
home of respondent George Upton and his mother. She stated that the
stolen items included jewelry, silver, and gold. As set out in
Lieutenant Beland's affidavit in support of a search warrant:

															"She further stated that George Upton was going to move the
motor home any time now because of the fact that Ricky Kelleher's
motel room was raided, and that George [Upton] had purchased these
stolen items from Ricky Kelleher. This unidentified female stated
that she had seen the stolen items, but refused to identify herself
because 'he'll kill me,' referring to George Upton. I then told
this unidentified female that I knew who she was, giving her the
name of Lynn Alberico, who I had met on May 16, 1980, at George
Upton's repair shop off Summer St., in Yarmouthport. She was
identified to me by George Upton as being his girlfriend, Lynn
Alberico. The unidentified female admitted that she was the girl
that I had named, stating that she was surprised that I knew who
she was. She then told me that she'd broken up with George Upton
and wanted to burn him. She also told me that she wouldn't give me
her address or phone number but that she would contact me in the
future, if need be." See 390 Mass. at 564 n. 2, 458 N.E.2d at 718, n. 2.

															Following the phone call, Lieutenant Beland went to Upton's
house to verify that a motor home was parked on the property. Then,
while other officers watched the premises, Lieutenant Beland
prepared the application for a search warrant, Page 466 U. S. 730 setting out all the information noted above in an accompanying
affidavit. He also attached the police reports on the two prior
burglaries, along with lists of the stolen property. A Magistrate
issued the warrant, and a subsequent search of the motor home
produced the items described by the caller and other incriminating
evidence. The discovered evidence led to Upton's conviction on
multiple counts of burglary, receiving stolen property, and related
crimes.

															On appeal to the Supreme Judicial Court, respondent argued that
the search warrant was not supported by a sufficient showing of
"probable cause" under the Fourth Amendment. With respect to our Gates opinion, that court said:

															"It is not clear that the Gates opinion has announced a
significant change in the appropriate Fourth Amendment treatment of
applications for search warrants. Looking at what the Court did on
the facts before it, and rejecting an expansive view of certain
general statements not essential to the decision, we conclude that
the Gates opinion deals principally with what
corroboration of an informant's tip, not adequate by itself, will
be sufficient to meet probable cause standards."

															390 Mass. at 568, 458 N.E.2d at 720.

															Prior to Gates, the Fourth Amendment was understood by
many courts to require strict satisfaction of a "two-pronged test"
whenever an affidavit supporting the issuance of a search warrant
relies on an informant's tip. It was thought that the affidavit,
first, must establish the "basis of knowledge" of the informant --
the particular means by which he came by the information given in
his report; and, second, that it must provide facts establishing
either the general "veracity" of the informant or the specific
"reliability" of his report in the particular case. The
Massachusetts court apparently viewed Gates as merely
adding a new wrinkle to this two-pronged test: where an informant's
veracity and/or basis of knowledge are not sufficiently clear,
substantial corroboration of the tip may save an otherwise invalid
warrant. Page 466 U. S. 731 "We do not view the Gates opinion as decreeing a
standardless 'totality of the circumstances' test. The informant's
veracity and the basis of his knowledge are still important but,
where the tip is adequately corroborated, they are not elements
indispensible [ sic ] to a finding of probable cause. It
seems that, in a given case, the corroboration may be so strong as
to satisfy probable cause in the absence of any other showing of
the informant's 'veracity' and any direct statement of the 'basis
of [his] knowledge.'"

															390 Mass. at 568, 458 N.E.2d at 721.

															Turning to the facts of this case, the Massachusetts court
reasoned, first, that the basis of the informant's knowledge was
not "forcefully apparent" in the affidavit. Id. at 569,
458 N.E.2d at 721. Although the caller stated that she had seen the
stolen items and that they were in the motor home, she did not
specifically state that she saw them in the motor home. Second, the
court concluded that

															"[n]one of the common bases for determining the credibility of
an informant or the reliability of her information is present
here." Ibid. The caller was not a "tried and true" informant,
her statement was not against penal interest, and she was not an
"ordinary citizen" providing information as a witness to a
crime.

															"She was an anonymous informant, and her unverified assent to
the suggestion that she was Lynn Alberico does not take her out of
that category." Id. at 570, 458 N.E.2d at 722.

															Finally, the court felt that there was insufficient
corroboration of the informant's tip to make up for its failure to
satisfy the two-pronged test. The facts that tended to corroborate
the informant's story were that the motor home was where it was
supposed to be, that the caller knew of the motel raid which took
place only three hours earlier, and that the caller knew the name
of Upton and his girlfriend. But, much as the Supreme Court of
Illinois did in the opinion we reviewed in Gates, the
Massachusetts court reasoned that each item of corroborative
evidence either related to innocent, nonsuspicious conduct or
related to an event that took place in Page 466 U. S. 732 public. To sustain the warrant, the court concluded, more
substantial corroboration was needed. The court therefore held that
the warrant violated the Fourth Amendment to the United States
Constitution, and reversed respondent's convictions.

															We think that the Supreme Judicial Court of Massachusetts
misunderstood our decision in Gates. We did not merely
refine or qualify the "two-pronged test." We rejected it as
hypertechnical and divorced from "the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Brinegar v. United
States, 338 U. S. 160 , 338 U. S. 175 (1949). Our statement on that score was explicit.

															"[W]e conclude that it is wiser to abandon the 'two-pronged
test' established by our decisions in Aguilar and Spinelli. In its place, we reaffirm the
totality-of-the-circumstances analysis that traditionally has
informed probable cause determinations." Gates, 462 U.S. at 462 U. S. 238 .
This "totality-of-the-circumstances" analysis is more in keeping
with the "practical, common-sense decision" demanded of the
magistrate. Ibid. We noted in Gates that

															"the 'two-pronged test' has encouraged an excessively technical
dissection of informants' tips, with undue attention being focused
on isolated issues that cannot sensibly be divorced from the other
facts presented to the magistrate." Id. at 462 U. S.
234 -235 (footnote omitted). This, we think, is the error
of the Massachusetts court in this case. The court did not consider
Lieutenant Beland's affidavit in its entirety, giving significance
to each relevant piece of information and balancing the relative
weights of all the various indicia of reliability (and
unreliability) attending the tip. Instead, the court insisted on
judging bits and pieces of information in isolation against the
artificial standards provided by the two-pronged test.

															The Supreme Judicial Court also erred in failing to grant any
deference to the decision of the Magistrate to issue a warrant.
Instead of merely deciding whether the evidence, Page 466 U. S. 733 viewed as a whole, provided a "substantial basis" for the
Magistrate's finding of probable cause, the court conducted a de novo probable cause determination. We rejected just
such after-the-fact, de novo scrutiny in Gates. Id. at 462 U. S. 236 .
"A grudging or negative attitude by reviewing courts toward
warrants," United States v. Ventresca, 380 U.
S. 102 , 380 U. S. 108 (1965), is inconsistent both with the desire to encourage use of
the warrant process by police officers and with the recognition
that, once a warrant has been obtained, intrusion upon interests
protected by the Fourth Amendment is less severe than otherwise may
be the case. Gates, supra, at 462 U. S. 237 ,
n. 10. * A deferential
standard of review is appropriate to further the Fourth Amendment's
strong preference for searches conducted pursuant to a warrant.

															Examined in light of Gates, Lieutenant Beland's
affidavit provides a substantial basis for the issuance of the
warrant. No single piece of evidence in it is conclusive. But the
pieces fit neatly together and, so viewed, support the Magistrate's
determination that there was "a fair probability that contraband or
evidence of a crime" would be found in Upton's motor home. 462 U.S.
at 462 U. S. 238 .
The informant claimed to have seen the stolen goods, and gave a
description of them which tallied with the items taken in recent
burglaries. She knew of the raid on the motel room -- which
produced evidence connected to those burglaries -- and that the
room had been reserved by Kelleher. She explained the connection
between Page 466 U. S. 734 Kelleher's motel room and the stolen goods in Upton's motor
home. And she provided a motive both for her attempt at anonymity
-- fear of Upton's retaliation -- and for furnishing the
information -- her recent breakup with Upton and her desire "to
burn him."

															The Massachusetts court dismissed Lieutenant Beland's
identification of the caller as a mere "unconfirmed guess." 390
Mass. at 569, n. 6, 458 N.E.2d at 721, n. 6. But "probable cause
does not demand the certainty we associate with formal trials." Gates, supra, at 462 U. S. 246 .
Lieutenant Beland noted that the caller "admitted that she was the
girl I had named, stating that she was surprised that I knew who
she was." It is, of course, possible that the caller merely adopted
Lieutenant Beland's suggestion as "a convenient cover for her true
identity." 390 Mass. at 570, 458 N.E.2d at 722. But given the
caller's admission, her obvious knowledge of who Alberico was and
how she was connected with Upton, and her explanation of her motive
in calling, Lieutenant Beland's inference appears stronger than a
mere uninformed and unconfirmed guess. It is enough that the
inference was a reasonable one and conformed with the other pieces
of evidence making up the total showing of probable cause.

															In concluding that there was probable cause for the issuance of
this warrant, the Magistrate can hardly be accused of approving a
mere "hunch" or a bare recital of legal conclusions. The
informant's story and the surrounding facts possessed an internal
coherence that gave weight to the whole. Accordingly, we conclude
that the information contained in Lieutenant Beland's affidavit
provided a sufficient basis for the "practical, common-sense
decision" of the Magistrate.

															"Although in a particular case it may not be easy to determine
when an affidavit demonstrates the existence of probable cause, the
resolution of doubtful or marginal cases in this area should be
largely determined by the preference to be accorded to
warrants." United States v. Ventresca, supra, at 380 U. S.
109 . Page 466 U. S. 735 The judgment of the Supreme Judicial Court of Massachusetts is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion. It is so ordered. JUSTICE BRENNAN and JUSTICE MARSHALL dissent from the summary
disposition of this case, and would deny the petition for
certiorari.

															*

															"If the affidavits submitted by police officers are subjected to
the type of scrutiny some courts have deemed appropriate, police
might well resort to warrantless searches, with the hope of relying
on consent or some other exception to the Warrant Clause that might
develop at the time of the search. In addition, the possession of a
warrant by officers conducting an arrest or search greatly reduces
the perception of unlawful or intrusive police conduct, by
assuring"

															"the individual whose property is searched or seized of the
lawful authority of the executing officer, his need to search, and
the limits of his power to search."

															" United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977)." Gates, 462 U.S. at 462 U. S.
236 .

															JUSTICE STEVENS, concurring in the judgment.

															In my opinion, the judgment of the Supreme Judicial Court of
Massachusetts reflects an error of a more fundamental character
than the one this Court corrects today. It rested its decision on
the Fourth Amendment to the United States Constitution without
telling us whether the warrant was valid as a matter of
Massachusetts law. [ Footnote 1 ]
It has thereby increased its own burdens, as well as ours. For when
the case returns to that court, it must then review the probable
cause issue once again and decide whether or not a violation of the
state constitutional protection against unreasonable searches and
seizures has occurred. If such a violation did take place, much of
that court's first opinion, and all of this Court's opinion, are
for naught. [ Footnote 2 ] If no
such violation occurred, the second Page 466 U. S. 736 proceeding in that court could have been avoided by a ruling to
that effect when the case was there a year ago.

															If the Magistrate had violated a state statute when he issued
the warrant, surely the State Supreme Judicial Court would have so
held, and thereby avoided the necessity of deciding a federal
constitutional question. I see no reason why it should not have
followed the same sequence of analysis when an arguable violation
of the State Constitution is disclosed by the record. As the Oregon
Supreme Court has stated:

															"The proper sequence is to analyze the state's law, including
its constitutional law, before reaching a federal constitutional
claim. This is required not for the sake either of parochialism or
of style, but because the state does not deny any right claimed
under the federal Constitution when the claim before the court in
fact is fully met by state law." Sterling v. Cupp, 290 Ore. 611, 614, 625 P.2d
123 , 126 (1981). [ Footnote
3 ]

															The maintenance of the proper balance between the respective
jurisdictions of state and federal courts is always a difficult
task. In recent years, I have been concerned by what I have
regarded as an encroachment by this Court into territory that
should be reserved for state judges. See, e.g., Michigan v.
Long, 463 U. S. 1032 , 463 U. S.
1065 (1983) (STEVENS, J., dissenting); South Dakota
v. Neville, 459 U. S. 553 , 459 U. S. 566 (1983) (STEVENS, J., dissenting); Minnesota v. Clover Leaf
Creamery Co., 449 U. S. 456 , 449 U. S.
477 -489 (1981) (STEVENS, J., dissenting); Idaho
Department of Employment v. Smith, 434 U.
S. 100 , 434 U. S.
103 -105 (1977) (STEVENS, J., dissenting in part). The
maintenance of this balance is, however, a two-way Page 466 U. S. 737 street. It is also important that state judges do not
unnecessarily invite this Court to undertake review of state court
judgments. I believe the Supreme Judicial Court of Massachusetts
unwisely and unnecessarily invited just such review in this case.
Its judgment in this regard reflects a misconception of our
constitutional heritage and the respective jurisdictions of state
and federal courts.

															The absence of a Bill of Rights in the Constitution proposed by
the Federal Constitutional Convention of 1787 was a major objection
to the Convention's proposal. See, e.g., 12 The Papers of
Thomas Jefferson 438 (Boyd ed.1955). In defense of the Convention's
plan Alexander Hamilton argued that the enumeration of certain
rights was not only unnecessary, given that such rights had not
been surrendered by the people in their grant of limited powers to
the Federal Government, but "would even be dangerous" on the ground
that enumerating certain rights could provide a "plausible
pretense" for the Government to claim powers not granted in
derogation of the people's rights. The Federalist No. 84, pp. 573,
574 (Ford ed. 1898) (A. Hamilton). The latter argument troubled the
First Congress during deliberations on the Bill of Rights, and its
solution became the Ninth Amendment. See 1 Annals of
Congress 439 (1789) (remarks of Rep. Madison).

															The Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." To the extent that the
Bill of Rights is applicable to the States under the Fourteenth
Amendment, the principle embodied in the Ninth Amendment is
applicable as well. The Ninth Amendment, it has been said, states
but a truism. But that truism goes to the very core of the
constitutional relationship between the individual and governmental
authority, and, indeed, between sovereigns exercising authority
over the individual.

															In my view, the court below lost sight of this truism, and
permitted the enumeration of certain rights in the Fourth Amendment
to disparage the rights retained by the people of Page 466 U. S. 738 Massachusetts under Art. 14 of the Massachusetts Declaration of
Rights. It is, of course, not my role to state what rights Art. 14
confers upon the people of Massachusetts; under our system of
federalism, only Massachusetts can do that. The state court refused
to perform that function, however, and instead strained to rest its
judgment on federal constitutional grounds.

															Whatever protections Art. 14 does confer are surely disparaged
when the Supreme Judicial Court of Massachusetts refuses to
adjudicate their very existence because of the enumeration of
certain rights in the Constitution of the United States. The rights
conferred by Art. 14 may not only exceed the rights conferred by
the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment
as construed by the state court. The dissent followed the approach
of the majority to its logical conclusion, stating that there

															"appears to be no logical basis, and no support in the case law,
for interpreting the term 'cause' in art. 14 differently from the
'probable cause' requirement of the Fourth Amendment."

															390 Mass. 562, 580, 458
N.E.2d 717 , 727 (1983). "The right question," however,

															"is not whether a state's guarantee is the same as or broader
than its federal counterpart as interpreted by the Supreme Court.
The right question is what the state's guarantee means, and how it
applies to the case at hand. The answer may turn out the same as it
would under federal law. The state's law may prove to be more
protective than federal law. The state law also may be less
protective. In that case, the court must go on to decide the claim
under federal law, assuming it has been raised."

															Linde, E Pluribus -- Constitutional Theory and State
Courts, 18 Ga.L.Rev. 165, 179 (1984).

															It must be remembered that, for the first century of this
Nation's history, the Bill of Rights of the Constitution of the
United States was solely a protection for the individual in
relation to federal authorities. State Constitutions protected Page 466 U. S. 739 the liberties of the people of the several States from abuse by
state authorities. The Bill of Rights is now largely applicable to
state authorities, and is the ultimate guardian of individual
rights. The States in our federal system, however, remain the
primary guardian of the liberty of the people. The Massachusetts
court, I believe, ignored this fundamental premise of our
constitutional system of government. In doing so, it made an
ill-advised entry into the federal domain. Accordingly, I concur in
the Court's judgment.

															[ Footnote 1 ]

															Indeed, that court rather pointedly refused to consider whether
the search violated the provisions of Art. 14 of the Massachusetts
Declaration of Rights. It stated, in part:

															"If we have correctly construed the significance of Illinois
v. Gates, the Fourth Amendment standards for determining
probable cause to issue a search warrant have not been made so much
less clear and so relaxed as to compel us to try our hand at a
definition of standards under art. 14. If we have misassessed the
consequences of the Gates opinion and in fact the Gates standard proves to be unacceptably shapeless and
permissive, this court may have to define the protections
guaranteed to the people against unreasonable searches and seizures
by art. 14, and the consequences of the violation of those
protections."

															390 Mass. 562, 573-574, 458
N.E.2d 717 , 724 (1983).

															[ Footnote 2 ] Cf. South Dakota v. Opperman, 428 U.
S. 364 (1976) ( rev'g 89 S.D. 25, 228 N.W.2d
152), on remand, 247 N.W.2d
673 (1976) (judgment reinstated on state grounds); South
Dakota v. Neville, 459 U. S. 553 (1983) ( rev'g 312 N.W.2d
723 (1981)), on remand, 346
N.W.2d 425 (1984) (judgment reinstated in part on state
grounds).

															[ Footnote 3 ] See also State v. Kennedy, 295 Ore. 260, 666 P.2d
1316 (1983), and cases cited therein, id. at 262, 666
P.2d at 1318; Hewitt v. State Accident Ins. Fund Corp., 294 Ore. 33, 41-42, 653 P.2d
970 , 975 (1982).


U.S. Supreme Court United States v. Place, 462
U.S. 696 (1983) United States v.
Place No. 81-1617 Argued March 2, 1983 Decided June 20, 1983 462
U.S. 696 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus When respondent's behavior aroused the suspicion of law
enforcement officers as he waited in line at the Miami
International Airport to purchase a ticket to New York's La Guardia
Airport, the officers approached respondent and requested and
received identification. Respondent consented to a search of the
two suitcases he had checked, but, because his flight was about to
depart, the officers decided not to search the luggage. The
officers then found some discrepancies in the address tags on the
luggage and called Drug Enforcement Administration (DEA)
authorities in New York to relay this information. Upon
respondent's arrival at La Guardia Airport, two DEA agents
approached him, said that they believed he might be carrying
narcotics, and asked for and received identification. When
respondent refused to consent to a search of his luggage, one of
the agents told him that they were going to take it to a federal
judge to obtain a search warrant. The agents then took the luggage
to Kennedy Airport where it was subjected to a "sniff test" by a
trained narcotics detection dog which reacted positively to one of
the suitcases. At this point, 90 minutes had elapsed since the
seizure of the luggage. Thereafter, the agents obtained a search
warrant for that suitcase and, upon opening it, discovered cocaine.
Respondent was indicted for possession of cocaine with intent to
distribute, and the District Court denied his motion to suppress
the contents of the suitcase. He pleaded guilty to the charge and
was convicted, but reserved the right to appeal the denial of his
motion to suppress. The Court of Appeals reversed, holding that the
prolonged seizure of respondent's luggage exceeded the limits of
the type of investigative stop permitted by Terry v. Ohio, 392 U. S. 1 , and
hence amounted to a seizure without probable cause in violation of
the Fourth Amendment. Held: Under the circumstances, the seizure of
respondent's luggage violated the Fourth Amendment. Accordingly,
the evidence obtained from the subsequent search of the luggage was
inadmissible, and respondent's conviction must be reversed. Pp. 462 U. S.
700 -710.

															(a) When an officer's observations lead him reasonably to
believe that a traveler is carrying luggage that contains
narcotics, the principles of Terry and its progeny permit
the officer to detain the luggage temporarily to investigate the
circumstances that aroused the officer's suspicion, Page 462 U. S. 697 provided that the investigative detention is properly limited in
scope. Pp. 462 U. S.
700 -706.

															(b) The investigative procedure of subjecting luggage to a
"sniff test" by a well-trained narcotics detection dog does not
constitute a "search" within the meaning of the Fourth Amendment.
Pp. 462 U. S.
706 -707.

															(c) When the police seize luggage from the suspect's custody,
the limitations applicable to investigative detentions of the
person should define the permissible scope of an investigative
detention of the luggage on less than probable cause. Under this
standard, the police conduct here exceeded the permissible limits
of a Terry -type investigative stop. The length of the
detention of respondent's luggage alone precludes the conclusion
that the seizure was reasonable in the absence of probable cause.
This Fourth Amendment violation was exacerbated by the DEA agents'
failure to inform respondent accurately of the place to which they
were transporting his luggage, of the length of time he might be
dispossessed, and of what arrangements would be made for return of
the luggage if the investigation dispelled the suspicion. Pp. 462 U. S.
707 -710.

															660 F.2d 44, affirmed.

															O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ.,
joined. BRENNAN, J., filed an opinion concurring in the result, in
which MARSHALL, J., joined, post, p. 462 U. S. 710 .
BLACKMUN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined, post, p. 462 U. S.
720 .

															JUSTICE O'CONNOR delivered the opinion of the Court.

															This case presents the issue whether the Fourth Amendment
prohibits law enforcement authorities from temporarily Page 462 U. S. 698 detaining personal luggage for exposure to a trained narcotics
detection dog on the basis of reasonable suspicion that the luggage
contains narcotics. Given the enforcement problems associated with
the detection of narcotics trafficking and the minimal intrusion
that a properly limited detention would entail, we conclude that
the Fourth Amendment does not prohibit such a detention. On the
facts of this case, however, we hold that the police conduct
exceeded the bounds of a permissible investigative detention of the
luggage. I Respondent Raymond J. Place's behavior aroused the suspicions of
law enforcement officers as he waited in line at the Miami
International Airport to purchase a ticket to New York's La Guardia
Airport. As Place proceeded to the gate for his flight, the agents
approached him and requested his airline ticket and some
identification. Place complied with the request and consented to a
search of the two suitcases he had checked. Because his flight was
about to depart, however, the agents decided not to search the
luggage.

															Prompted by Place's parting remark that he had recognized that
they were police, the agents inspected the address tags on the
checked luggage and noted discrepancies in the two street
addresses. Further investigation revealed that neither address
existed, and that the telephone number Place had given the airline
belonged to a third address on the same street. On the basis of
their encounter with Place and this information, the Miami agents
called Drug Enforcement Administration (DEA) authorities in New
York to relay their information about Place.

															Two DEA agents waited for Place at the arrival gate at La
Guardia Airport in New York. There again, his behavior aroused the
suspicion of the agents. After he had claimed his two bags and
called a limousine, the agents decided to approach him. They
identified themselves as federal narcotics agents, to which Place
responded that he knew they were "cops" and had spotted them as
soon as he had deplaned. Page 462 U. S. 699 One of the agents informed Place that, based on their own
observations and information obtained from the Miami authorities,
they believed that he might be carrying narcotics. After
identifying the bags as belonging to him, Place stated that a
number of police at the Miami Airport had surrounded him and
searched his baggage. The agents responded that their information
was to the contrary. The agents requested and received
identification from Place -- a New Jersey driver's license, on
which the agents later ran a computer check that disclosed no
offenses, and his airline ticket receipt. When Place refused to
consent to a search of his luggage, one of the agents told him that
they were going to take the luggage to a federal judge to try to
obtain a search warrant, and that Place was free to accompany them.
Place declined, but obtained from one of the agents telephone
numbers at which the agents could be reached.

															The agents then took the bags to Kennedy Airport, where they
subjected the bags to a "sniff test" by a trained narcotics
detection dog. The dog reacted positively to the smaller of the two
bags but ambiguously to the larger bag. Approximately 90 minutes
had elapsed since the seizure of respondent's luggage. Because it
was late on a Friday afternoon, the agents retained the luggage
until Monday morning, when they secured a search warrant from a
Magistrate for the smaller bag. Upon opening that bag, the agents
discovered 1,125 grams of cocaine.

															Place was indicted for possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). In the District
Court, Place moved to suppress the contents of the luggage seized
from him at La Guardia Airport, claiming that the warrantless
seizure of the luggage violated his Fourth Amendment rights.
[ Footnote 1 ] The District Court
denied the motion. Page 462 U. S. 700 Applying the standard of Terry v. Ohio, 392 U. S.
1 (1968), to the detention of personal property, it
concluded that detention of the bags could be justified if based on
reasonable suspicion to believe that the bags contained narcotics.
Finding reasonable suspicion, the District Court held that Place's
Fourth Amendment rights were not violated by seizure of the bags by
the DEA agents. 498 F.
Supp. 1217 , 1228 (EDNY 1980). Place pleaded guilty to the possession charge,
reserving the right to appeal the denial of his motion to
suppress.

															On appeal of the conviction, the United States Court of Appeals
for the Second Circuit reversed. 660 F.2d 44 (1981). The majority
assumed both that Terry principles could be applied to
justify a warrantless seizure of baggage on less than probable
cause, and that reasonable suspicion existed to justify the
investigatory stop of Place. The majority concluded, however, that
the prolonged seizure of Place's baggage exceeded the permissible
limits of a Terry -type investigative stop, and
consequently amounted to a seizure without probable cause in
violation of the Fourth Amendment.

															We granted certiorari, 457 U.S. 1104 (1982), and now affirm. II The Fourth Amendment protects the "right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.)
Although, in the context of personal property, and particularly
containers, the Fourth Amendment challenge is Page 462 U. S. 701 typically to the subsequent search of the container, rather than
to its initial seizure by the authorities, our cases reveal some
general principles regarding seizures. In the ordinary case, the
Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it
is accomplished pursuant to a judicial warrant issued upon probable
cause and particularly describing the items to be seized. [ Footnote 2 ] See, e.g., Marron v.
United States, 275 U. S. 192 , 275 U. S. 196 (1927). Where law enforcement authorities have probable cause to
believe that a container holds contraband or evidence of a crime,
but have not secured a warrant, the Court has interpreted the
Amendment to permit seizure of the property, pending issuance of a
warrant to examine its contents, if the exigencies of the
circumstances demand it or some other recognized exception to the
warrant requirement is present. See, e.g., Arkansas v.
Sanders, 442 U. S. 753 , 442 U. S. 761 (1979); United States v. Chadwick, 433 U. S.
1 (1977); Coolidge v. New Hampshire, 403 U. S. 443 (1971). [ Footnote 3 ] For
example, "objects such as weapons or contraband found in a public
place may be seized by the police without a warrant," Payton v.
New York, 445 U. S. 573 , 445 U. S. 587 (1980), because, under these circumstances, the risk of the item's
disappearance or use for its intended purpose before a Page 462 U. S. 702 warrant may be obtained outweighs the interest in possession. See also G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 354 (1977).

															In this case, the Government asks us to recognize the
reasonableness under the Fourth Amendment of warrantless seizures
of personal luggage from the custody of the owner on the basis of
less than probable cause, for the purpose of pursuing a limited
course of investigation, short of opening the luggage, that would
quickly confirm or dispel the authorities' suspicion. Specifically,
we are asked to apply the principles of Terry v. Ohio,
supra, to permit such seizures on the basis of reasonable,
articulable suspicion, premised on objective facts, that the
luggage contains contraband or evidence of a crime. In our view,
such application is appropriate.

															In Terry, the Court first recognized

															"the narrow authority of police officers who suspect criminal
activity to make limited intrusions on an individual's personal
security based on less than probable cause." Michigan v. Summers, 452 U. S. 692 , 452 U. S. 698 (1981). In approving the limited search for weapons, or "frisk," of
an individual the police reasonably believed to be armed and
dangerous, the Court implicitly acknowledged the authority of the
police to make a forcible stop of a person when the officer has
reasonable, articulable suspicion that the person has been, is, or
is about to be engaged in criminal activity. 392 U.S. at 392 U. S. 22 .
[ Footnote 4 ] That implicit
proposition was embraced openly in Adams v. Williams, 407 U. S. 143 , 407 U. S. 146 (1972), where the Court relied on Terry to hold that the
police officer lawfully made a forcible stop of the suspect to
investigate an informant's tip that the suspect was carrying Page 462 U. S. 703 narcotics and a concealed weapon. See also Michigan v.
Summers, supra, (limited detention of occupants while
authorities search premises pursuant to valid search warrant); United States v. Cortez, 449 U. S. 411 (1981) (stop near border of vehicle suspected of transporting
illegal aliens); United States v. Brignoni-Ponce, 422 U. S. 873 (1975) (brief investigative stop near border for questioning about
citizenship and immigration status).

															The exception to the probable cause requirement for limited
seizures of the person recognized in Terry and its progeny
rests on a balancing of the competing interests to determine the
reasonableness of the type of seizure involved within the meaning
of "the Fourth Amendment's general proscription against
unreasonable searches and seizures." 392 U.S. at 392 U. S. 20 . We
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. When
the nature and extent of the detention are minimally intrusive of
the individual's Fourth Amendment interests, the opposing law
enforcement interests can support a seizure based on less than
probable cause.

															We examine first the governmental interest offered as a
justification for a brief seizure of luggage from the suspect's
custody for the purpose of pursuing a limited course of
investigation. The Government contends that, where the authorities
possess specific and articulable facts warranting a reasonable
belief that a traveler's luggage contains narcotics, the
governmental interest in seizing the luggage briefly to pursue
further investigation is substantial. We agree. As observed in United States v. Mendenhall, 446 U.
S. 544 , 446 U. S. 561 (1980) (opinion of POWELL, J.), "[t]he public has a compelling
interest in detecting those who would traffic in deadly drugs for
personal profit."

															Respondent suggests that, absent some special law enforcement
interest such as officer safety, a generalized interest in law
enforcement cannot justify an intrusion on an individual's Fourth
Amendment interests in the absence of Page 462 U. S. 704 probable cause. Our prior cases, however, do not support this
proposition. In Terry, we described the governmental
interests supporting the initial seizure of the person as

															"effective crime prevention and detection; it is this interest
which underlies the recognition that a police officer may, in
appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possibly criminal behavior
even though there is no probable cause to make an arrest."

															392 U.S. at 392 U. S. 22 .
Similarly, in Michigan v. Summers, we identified three law
enforcement interests that justified limited detention of the
occupants of the premises during execution of a valid search
warrant: "preventing flight in the event that incriminating
evidence is found," "minimizing the risk of harm" both to the
officers and the occupants, and "orderly completion of the search."
452 U.S. at 452 U. S.
702 -703. Cf. Florida v. Royer, 460 U.
S. 491 , 460 U. S. 500 (1983) (plurality opinion) ("The predicate permitting seizures on
suspicion short of probable cause is that law enforcement interests
warrant a limited intrusion on the personal security of the
suspect"). The test is whether those interests are sufficiently
"substantial," 452 U.S. at 452 U. S. 699 , not whether they are independent of the
interest in investigating crimes effectively and apprehending
suspects. The context of a particular law enforcement practice, of
course, may affect the determination whether a brief intrusion on
Fourth Amendment interests on less than probable cause is essential
to effective criminal investigation. Because of the inherently
transient nature of drug courier activity at airports, allowing
police to make brief investigative stops of persons at airports on
reasonable suspicion of drug-trafficking substantially enhances the
likelihood that police will be able to prevent the flow of
narcotics into distribution channels. [ Footnote 5 ] Page 462 U. S. 705 Against this strong governmental interest, we must weigh the
nature and extent of the intrusion upon the individual's Fourth
Amendment rights when the police briefly detain luggage for limited
investigative purposes. On this point, respondent Place urges that
the rationale for a Terry stop of the person is wholly
inapplicable to investigative detentions of personalty.
Specifically, the Terry exception to the probable cause
requirement is premised on the notion that a Terry -type
stop of the person is substantially less intrusive of a person's
liberty interests than a formal arrest. In the property context,
however, Place urges, there are no degrees of intrusion. Once the
owner's property is seized, the dispossession is absolute.

															We disagree. The intrusion on possessory interests occasioned by
a seizure of one's personal effects can vary both in its nature and
extent. The seizure may be made after the owner has relinquished
control of the property to a third party or, as here, from the
immediate custody and control of the owner. [ Footnote 6 ] Moreover, the police may confine their
investigation Page 462 U. S. 706 to an on-the-spot inquiry -- for example, immediate exposure of
the luggage to a trained narcotics detection dog [ Footnote 7 ] -- or transport the property to
another location. Given the fact that seizures of property can vary
in intrusiveness, some brief detentions of personal effects may be
so minimally intrusive of Fourth Amendment interests that strong
countervailing governmental interests will justify a seizure based
only on specific articulable facts that the property contains
contraband or evidence of a crime.

															In sum, we conclude that, when an officer's observations lead
him reasonably to believe that a traveler is carrying luggage that
contains narcotics, the principles of Terry and its
progeny would permit the officer to detain the luggage briefly to
investigate the circumstances that aroused his suspicion, provided
that the investigative detention is properly limited in scope.

															The purpose for which respondent's luggage was seized, of
course, was to arrange its exposure to a narcotics detection dog.
Obviously, if this investigative procedure is itself a search
requiring probable cause, the initial seizure of respondent's
luggage for the purpose of subjecting it to the sniff test -- no
matter how brief -- could not be justified on less than probable
cause. See Terry v. Ohio, 392 U.S. at 392 U. S. 20 ; United States v. Cortez, 449 U.S. at 449 U. S. 421 ; United States v. Brignoni-Ponce, 422 U.S. at 422 U. S.
881 -882; Adams v. Williams, 407 U.S. at 407 U. S.
146 .

															The Fourth Amendment "protects people from unreasonable
government intrusions into their legitimate expectations Page 462 U. S. 707 of privacy." United States v. Chadwick, 433 U.S. at 433 U. S. 7 . We
have affirmed that a person possesses a privacy interest in the
contents of personal luggage that is protected by the Fourth
Amendment. Id. at 433 U. S. 13 . A "canine sniff" by a well-trained
narcotics detection dog, however, does not require opening the
luggage. It does not expose noncontraband items that otherwise
would remain hidden from public view, as does, for example, an
officer's rummaging through the contents of the luggage. Thus, the
manner in which information is obtained through this investigative
technique is much less intrusive than a typical search. Moreover,
the sniff discloses only the presence or absence of narcotics, a
contraband item. Thus, despite the fact that the sniff tells the
authorities something about the contents of the luggage, the
information obtained is limited. This limited disclosure also
ensures that the owner of the property is not subjected to the
embarrassment and inconvenience entailed in less discriminate and
more intrusive investigative methods.

															In these respects, the canine sniff is sui generis. We
are aware of no other investigative procedure that is so limited
both in the manner in which the information is obtained and in the
content of the information revealed by the procedure. Therefore, we
conclude that the particular course of investigation that the
agents intended to pursue here -- exposure of respondent's luggage,
which was located in a public place, to a trained canine -- did not
constitute a "search" within the meaning of the Fourth
Amendment. III There is no doubt that the agents made a "seizure" of Place's
luggage for purposes of the Fourth Amendment when, following his
refusal to consent to a search, the agent told Place that he was
going to take the luggage to a federal judge to secure issuance of
a warrant. As we observed in Terry ,

															"[t]he manner in which the seizure . . . [was] conducted Page 462 U. S. 708 is, of course, as vital a part of the inquiry as whether [it
was] warranted at all."

															392 U.S. at 392 U. S. 28 . We
therefore examine whether the agents' conduct in this case was such
as to place the seizure within the general rule requiring probable
cause for a seizure or within Terry 's exception to that
rule.

															At the outset, we must reject the Government's suggestion that
the point at which probable cause for seizure of luggage from the
person's presence becomes necessary is more distant than in the
case of a Terry stop of the person himself. The premise of
the Government's argument is that seizures of property are
generally less intrusive than seizures of the person. While true in
some circumstances, that premise is faulty on the facts we address
in this case. The precise type of detention we confront here is
seizure of personal luggage from the immediate possession of the
suspect for the purpose of arranging exposure to a narcotics
detection dog. Particularly in the case of detention of luggage
within the traveler's immediate possession, the police conduct
intrudes on both the suspect's possessory interest in his luggage
as well as his liberty interest in proceeding with his itinerary.
The person whose luggage is detained is technically still free to
continue his travels or carry out other personal activities pending
release of the luggage. Moreover, he is not subjected to the
coercive atmosphere of a custodial confinement or to the public
indignity of being personally detained. Nevertheless, such a
seizure can effectively restrain the person, since he is subjected
to the possible disruption of his travel plans in order to remain
with his luggage or to arrange for its return. [ Footnote 8 ] Therefore, when the police seize
luggage from the Page 462 U. S. 709 suspect's custody, we think the limitations applicable to
investigative detentions of the person should define the
permissible scope of an investigative detention of the person's
luggage on less than probable cause. Under this standard, it is
clear that the police conduct here exceeded the permissible limits
of a Terry -type investigative stop.

															The length of the detention of respondent's luggage alone
precludes the conclusion that the seizure was reasonable in the
absence of probable cause. Although we have recognized the
reasonableness of seizures longer than the momentary ones involved
in Terry, Adams, and Brignoni-Ponce, see Michigan v.
Summers, 452 U. S. 692 (1981), the brevity of the invasion of the individual's Fourth
Amendment interests is an important factor in determining whether
the seizure is so minimally intrusive as to be justifiable on
reasonable suspicion. Moreover, in assessing the effect of the
length of the detention, we take into account whether the police
diligently pursue their investigation. We note that here the New
York agents knew the time of Place's scheduled arrival at La
Guardia, had ample time to arrange for their additional
investigation at that location, and thereby could have minimized
the intrusion on respondent's Fourth Amendment interests. [ Footnote 9 ] Thus, although we decline
to adopt any outside time limitation for a permissible Terry stop, [ Footnote
10 ] we have never Page 462 U. S. 710 approved a seizure of the person for the prolonged 90-minute
period involved here and cannot do so on the facts presented by
this case. See Dunaway v. New York, 442 U.
S. 200 (1979)

															Although the 90-minute detention of respondent's luggage is
sufficient to render the seizure unreasonable, the violation was
exacerbated by the failure of the agents to accurately inform
respondent of the place to which they were transporting his
luggage, of the length of time he might be dispossessed, and of
what arrangements would be made for return of the luggage if the
investigation dispelled the suspicion. In short, we hold that the
detention of respondent's luggage in this case went beyond the
narrow authority possessed by police to detain briefly luggage
reasonably suspected to contain narcotics. IV We conclude that, under all of the circumstances of this case,
the seizure of respondent's luggage was unreasonable under the
Fourth Amendment. Consequently, the evidence obtained from the
subsequent search of his luggage was inadmissible, and Place's
conviction must be reversed. The judgment of the Court of Appeals,
accordingly, is affirmed. It is so ordered. [ Footnote 1 ]

															In support of his motion, respondent also contended that the
detention of his person at both the Miami and La Guardia Airports
was not based on reasonable suspicion, and that the "sniff test" of
his luggage was conducted in a manner that tainted the dog's
reaction. 498 F.
Supp. 1217 , 1221, 1228 (EDNY 1980). The District Court rejected
both contentions. As to the former, it concluded that the agents
had reasonable suspicion to believe that Place was engaged in
criminal activity when he was detained at the two airports, and
that the stops were therefore lawful. Id. at 1225, 1226.
On appeal, the Court of Appeals did not reach this issue, assuming
the existence of reasonable suspicion. Respondent Place
cross-petitioned in this Court on the issue of reasonable
suspicion, and we denied certiorari. Place v. United
States, 457 U.S. 1106 (1982). We therefore have no occasion to
address the issue here.

															[ Footnote 2 ]

															The Warrant Clause of the Fourth Amendment provides that

															"no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

															[ Footnote 3 ]

															In Sanders, the Court explained:

															"The police acted properly -- indeed commendably -- in
apprehending respondent and his luggage. They had ample probable
cause to believe that respondent's green suitcase contained
marihuana. . . . Having probable cause to believe that contraband
was being driven away in the taxi, the police were justified in
stopping the vehicle . . . and seizing the suitcase they suspected
contained contraband."

															442 U.S. at 442 U. S. 761 .
The Court went on to hold that the police violated the Fourth
Amendment in immediately searching the luggage, rather than first
obtaining a warrant authorizing the search. Id. at 442 U. S. 766 .
That holding was not affected by our recent decision in United
States v. Ross, 456 U. S. 798 , 456 U. S. 824 (1982).

															[ Footnote 4 ]

															In his concurring opinion in Terry, Justice Harlan made
this logical underpinning of the Court's Fourth Amendment holding
clear:

															"In the first place, if the frisk is justified in order to
protect the officer during an encounter with a citizen, the officer
must first have constitutional grounds to insist on an encounter,
to make a forcible stop. . . . I would make it perfectly clear that
the right to frisk in this case depends upon the reasonableness of
a forcible stop to investigate a suspected crime."

															392 U.S. at 392 U. S.
32 -33.

															[ Footnote 5 ]

															Referring to the problem of intercepting drug couriers in the
Nation's airports, JUSTICE POWELL has observed:

															"Much of the drug traffic is highly organized and conducted by
sophisticated criminal syndicates. The profits are enormous. And
many drugs . . . may be easily concealed. As a result, the
obstacles to detection of illegal conduct may be unmatched in any
other area of law enforcement." United States v. Mendenhall, 446 U.
S. 544 , 446 U. S.
561 -562 (1980). See Florida v. Royer, 460 U. S. 491 , 460 U. S. 519 (1983) (BLACKMUN, J., dissenting) ("The special need for
flexibility in uncovering illicit drug couriers is hardly
debatable") (airport context).

															[ Footnote 6 ]

															One need only compare the facts of this case with those in United States v. Van Leeuwen, 397 U.
S. 249 (1970). There the defendant had voluntarily
relinquished two packages of coins to the postal authorities.
Several facts aroused the suspicion of the postal officials, who
detained the packages, without searching them, for about 29 hours
while certain lines of inquiry were pursued. The information
obtained during this time was sufficient to give the authorities
probable cause to believe that the packages contained counterfeit
coins. After obtaining a warrant, the authorities opened the
packages, found counterfeit coins therein, resealed the packages,
and sent them on their way. Expressly limiting its holding to the
facts of the case, the Court concluded that the 29-hour detention
of the packages on reasonable suspicion that they contained
contraband did not violate the Fourth Amendment. Id. at 397 U. S.
253 .

															As one commentator has noted, Van Leeuwen was an easy case for the Court because the
defendant was unable to show that the invasion intruded upon either
a privacy interest in the contents of the packages or a possessory
interest in the packages themselves.

															3 W. LaFave, Search and Seizure § 9.6, p. 71 (Supp.1982).

															[ Footnote 7 ] Cf. Florida v. Royer, supra, at 460 U. S. 502 (plurality opinion) ("We agree with the State that [the officers
had] adequate grounds for suspecting Royer of carrying drugs and
for temporarily detaining him and his luggage while they
attempted to verify or dispel their suspicions in a manner that did
not exceed the limits of an investigative detention") (emphasis
added).

															[ Footnote 8 ]

															"At least when the authorities do not make it absolutely clear
how they plan to reunite the suspect and his possessions at some
future time and place, seizure of the object is tantamount to
seizure of the person. This is because that person must either
remain on the scene or else seemingly surrender his effects
permanently to the police."

															3 W. LaFave, Search and Seizure § 9.6, p. 72 (Supp.1982).

															[ Footnote 9 ] Cf. Florida v. Royer, 460 U.S. at 460 U. S. 506 (plurality opinion) ("If [trained narcotics detection dogs] had
been used, Royer and his luggage could have been momentarily
detained while this investigative procedure was carried out"). This
course of conduct also would have avoided the further substantial
intrusion on respondent's possessory interests caused by the
removal of his luggage to another location.

															[ Footnote 10 ] Cf. ALI, Model Code of Pre-Arraignment Procedure §
110.2(1) (1975) (recommending a maximum of 20 minutes for a Terry stop). We understand the desirability of providing
law enforcement authorities with a clear rule to guide their
conduct. Nevertheless, we question the wisdom of a rigid time
limitation. Such a limit would undermine the equally important need
to allow authorities to graduate their responses to the demands of
any particular situation.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in
the result.

															In this case, the Court of Appeals assumed both that the
officers had the "reasonable suspicion" necessary to justify an
"investigative" stop of respondent under Terry v. Ohio, 392 U. S. 1 (1968),
and its progeny, and that the principles of Terry apply to
seizures of property. See 660 F.2d 44, 50 (CA2 1981); ante at 462 U. S. 700 .
The court held simply that

															"the prolonged seizure of [respondent's] baggage went far beyond
a mere investigative stop, and amounted to a violation of his
Fourth Amendment rights."

															660 F.2d at 50. See also id. Page 462 U. S. 711 at 52, 53. I would affirm the Court of Appeals' judgment on this
ground.

															Instead of simply affirming on this ground and putting an end to
the matter, the Court decides to reach, and purportedly to resolve,
the constitutionality of the seizure of respondent's luggage on
less than probable cause and the exposure of that luggage to a
narcotics detection dog. See ante at 462 U. S.
706 -707. Apparently the Court finds itself unable to
"resist the pull to decide the constitutional issues involved in
this case on a broader basis than the record before [it]
imperatively requires." Street v. New York, 394 U.
S. 576 , 394 U. S. 581 (1969). Because the Court reaches issues unnecessary to its
judgment, and because I cannot subscribe to the Court's analysis of
those issues, I concur only in the result. I I have had occasion twice in recent months to discuss the
limited scope of the exception to the Fourth Amendment's probable
cause requirement created by Terry and its progeny. See Florida v. Royer, 460 U. S. 491 , 460 U. S. 509 (1983) (BRENNAN, J., concurring in result); Kolender v.
Lawson, 461 U. S. 352 , 461 U. S. 362 (1983) (BRENNAN, J., concurring). Unfortunately, the unwarranted
expansion of that exception which the Court endorses today forces
me to elaborate on my previously expressed views.

															In Terry, the Court expressly declined to address "the
constitutional propriety of an investigative seizure' upon less
than probable cause for purposes of `detention' and/or
interrogation." 392 U.S. at 392 U. S. 19 , n.
16. [ Footnote 2/1 ] The Court was
confronted Page 462 U. S.
712 with "the quite narrow question" of "whether it is always unreasonable for a policeman to seize a
person and subject him to a limited search for weapons unless there
is probable cause for an arrest." Id. at 392 U. S. 15 . In
addressing this question, the Court noted that it was dealing

															"with an entire rubric of police conduct -- necessarily swift
action predicated upon the on-the-spot observations of the officer
on the beat -- which historically has not been, and as a practical
matter could not be, subjected to the warrant procedure." Id. at 392 U. S. 20 . As
a result, the conduct involved in the case had to be "tested by the
Fourth Amendment's general proscription against unreasonable
searches and seizures." Ibid. (footnote omitted). The
Court's inquiry into the "reasonableness" of the conduct at issue
was based on a " balancing [of] the need to search [or seize]
against the invasion which the search [or seizure] entails.'" Id. at 392 U. S. 21 ,
quoting Camara v. Municipal Court, 387 U.
S. 523 , 387 U. S. 537 (1967). The Court concluded that the officer's conduct was
reasonable and stated its holding as follows: "We merely hold today that, where a police officer observes
unusual conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently
dangerous, where, in the course of investigating this behavior, he
identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety, he is
entitled, for the protection of himself and others in the area, to
conduct a carefully limited search of Page 462 U. S. 713 the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him."

															392 U.S. at 392 U. S. 30 .

															In Adams v. Williams, 407 U. S. 143 (1972), the Court relied on Terry to endorse "brief"
investigative stops based on reasonable suspicion. 407 U.S. at 407 U. S.
145 -146. In this regard, the Court stated that

															"[a] brief stop of a suspicious individual, in order to
determine his identity or to maintain the status quo momentarily while obtaining more information, may be most
reasonable in light of the facts known to the officer at the
time." Id. at 407 U. S. 146 .
The weapons search upheld in Adams was very limited, and
was based on Terry's safety rationale. 407 U.S. at 407 U. S. 146 .
The Court stated that the purpose of a "limited" weapons search "is
not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence. . . ." Ibid. In United States v. Brignoni-Ponce, 422 U.
S. 873 (1975), the Court relied on Terry and Adams in holding that,

															"when an officer's observations lead him reasonably to suspect
that a particular vehicle may contain aliens who are illegally in
the country, he may stop the car briefly and investigate the
circumstances that provoke suspicion."

															422 U.S. at 422 U. S. 881 .
[ Footnote 2/2 ] The Court based this
relaxation of the traditional probable cause requirement on the
importance of the governmental interest in stemming the flow of
illegal aliens, on the minimal intrusion of a brief stop, and on
the absence of practical alternatives for policing the border. Ibid. The Court noted the limited holdings of Terry and Adams and, while authorizing the police
to

															"question the driver and passengers about their citizenship and
immigration status, and . . . ask them to explain suspicious
circumstances,"

															the Court expressly stated that "any further detention or search
must be based on consent or probable cause." 422 U.S. at 422 U. S.
881 -882. See also Page 462 U. S. 714 Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 93 (1979) ("The Terry case created an exception to the
requirement of probable cause, an exception whose narrow scope'
this Court `has been careful to maintain'" (footnote omitted)); Dunaway v. New York, 442 U. S. 200 , 442 U. S.
209 -212 (1979) (discussing the narrow scope of Terry and its progeny). [ Footnote 2/3 ] It is clear that Terry, and the cases that followed it,
permit only brief investigative stops and extremely limited
searches based on reasonable suspicion. They do not provide the
police with a commission to employ whatever investigative
techniques they deem appropriate. As I stated in Florida v.
Royer, "[t]he scope of a Terry -type "investigative" stop and
any attendant search must be extremely limited or the Terry exception would "swallow the general rule that
Fourth Amendment seizures [and searches] are reasonable' only
if based on probable cause."" 460 U.S. at 460 U. S. 510 (concurring in result), quoting Dunaway v. New York,
supra, at 442 U. S.
213 . II In some respects, the Court's opinion in this case can be seen
as the logical successor of the plurality opinion in Florida v.
Royer, supra. The plurality opinion in Royer contained considerable language which was unnecessary to the
judgment, id. at 460 U. S. 509 (BRENNAN, J., concurring in result), regarding the permissible
scope of Terry investigative stops. See 460 U.S.
at 460 U. S.
501 -507, and n. 10. Even assuming, however, that the
Court finds some support in Royer for its discussion of
the scope of Terry stops, the Court today goes Page 462 U. S. 715 well beyond Royer in endorsing the notion that the
principles of Terry permit

															"warrantless seizures of personal luggage from the custody of
the owner on the basis of less than probable cause, for the purpose
of pursuing a limited course of investigation, short of opening the
luggage, that would quickly confirm or dispel the authorities'
suspicion." Ante at 462 U. S. 702 . See also ante at 462 U. S. 706 .
In addition to being unnecessary to the Court's judgment, see
supra at 462 U. S. 711 ,
this suggestion finds no support in Terry or its progeny,
and significantly dilutes the Fourth Amendment's protections
against government interference with personal property. In short,
it represents a radical departure from settled Fourth Amendment
principles.

															As noted supra at 462 U. S.
711 -712, Terry and the cases that followed it
authorize a brief "investigative" stop of an individual based on
reasonable suspicion and a limited search for weapons if the
officer reasonably suspects that the individual is armed and
presently dangerous. The purpose of this brief stop is "to
determine [the individual's] identity or to maintain the status
quo momentarily while obtaining more information. . . ." Adams v. Williams, 407 U.S. at 407 U. S. 146 .
Anything more than a brief stop "must be based on consent or
probable cause." United States v. Brignoni-Ponce, supra, at 422 U. S. 882 .
During the course of this stop,

															"the suspect must not be moved or asked to move more than a
short distance; physical searches are permitted only to the extent
necessary to protect the police officers involved during the
encounter; and, most importantly, the suspect must be free to leave
after a short time and to decline to answer the questions put to
him." Kolender v. Lawson, 461 U.S. at 461 U. S. 365 (BRENNAN, J., concurring). It is true that Terry stops may
involve seizures of personal effects incidental to the seizure of
the person involved. Obviously, an officer cannot seize a person
without also seizing the personal effects that the individual has
in his possession at the time. But there is a difference
between Page 462 U. S. 716 incidental seizures of personal effects and seizures of property
independent of the seizure of the person.

															The Fourth Amendment protects "effects" as well as people from
unreasonable searches and seizures. In this regard, JUSTICE STEVENS
pointed out in Texas v. Brown, 460 U.
S. 730 (1983), that

															"[t]he [Fourth] Amendment protects two different interests of
the citizen -- the interest in retaining possession of property and
the interest in maintaining personal privacy." Id. at 460 U. S. 747 (opinion concurring in judgment). "A seizure threatens the former,
a search the latter." Ibid. Even if an item is not
searched, therefore, its seizure implicates a protected Fourth
Amendment interest. For this reason, seizures of property must be
based on probable cause. See Colorado v. Bannister, 449 U. S. 1 , 449 U. S. 3 (1980); Payton v. New York, 445 U.
S. 573 , 445 U. S. 587 (1980); G. M. Leasing Corp. v. United States, 429 U.
S. 338 , 429 U. S. 351 (1977); Chambers v. Maroney, 399 U. S.
42 , 399 U. S. 51 -52
(1970); Warden v. Hayden, 387 U.
S. 294 , 387 U. S.
309 -310 (1967). See also Texas v. Brown, supra, at 460 U. S.
747 -748 (STEVENS, J., concurring in judgment). Neither Terry nor its progeny changed this rule.

															In this case, the officers' seizure of respondent and their
later independent seizure of his luggage implicated separate Fourth
Amendment interests. First, respondent had a protected interest in
maintaining his personal security and privacy. Terry allows this interest to be overcome, and authorizes a limited
intrusion if the officers have reason to suspect that criminal
activity is afoot. Second, respondent had a protected interest in
retaining possession of his personal effects. While Terry may authorize seizures of personal effects incident to a lawful
seizure of the person, nothing in the Terry line of cases
authorizes the police to seize personal property, such as luggage,
independent of the seizure of the person. Such seizures
significantly expand the scope of a Terry stop, and may
not be effected on less than probable Page 462 U. S. 717 cause. [ Footnote 2/4 ] Obviously,
they also significantly expand the scope of the intrusion.

															The officers did not develop probable cause to arrest respondent
during their encounter with him. See 660 F.2d at 50.
Therefore, they had to let him go. But despite the absence of
probable cause to arrest respondent, the officers seized his
luggage and deprived him of possession. Respondent, therefore, was
subjected not only to an invasion of his personal security and
privacy, but also to an independent dispossession of his personal
effects based simply on reasonable suspicion. It is difficult to
understand how this intrusion is not more severe than a brief stop
for questioning or even a limited, on-the-spot patdown search for
weapons.

															In my view, as soon as the officers seized respondent's luggage,
independent of their seizure of him, they exceeded the scope of a
permissible Terry stop and violated respondent's Fourth
Amendment rights. In addition, the officers' seizure of
respondent's luggage violated the established rule that seizures of
personal effects must be based on probable cause. Their actions,
therefore, should not be upheld.

															The Court acknowledges that seizures of personal property must
be based on probable cause. See ante at 462 U. S.
700 -702. Despite this recognition, the Court employs a
balancing test drawn from Terry to conclude that personal
effects may be seized based on reasonable suspicion. See
ante at 462 U. S.
703 -706. [ Footnote
2/5 ] Page 462 U. S. 718 In Dunaway v. New York, 442 U.
S. 200 (1979), the Court stated that

															"[t]he narrow intrusions involved in [ Terry and its
progeny] were judged by a balancing test, rather than by the
general principle that Fourth Amendment seizures must be supported
by the 'long-prevailing standards' of probable cause . . . only
because these intrusions fell far short of the kind of intrusion
associated with an arrest." Id. at 442 U. S. 212 .
As Dunaway suggests, the use of a balancing test in this
case is inappropriate. First, the intrusion involved in this case
is no longer the "narrow" one contemplated by the Terry line of cases. See supra at 462 U. S. 717 .
In addition, the intrusion involved in this case involves not only
the seizure of a person, but also the seizure of property. As noted supra at 462 U. S.
711 -712, Terry and its progeny did not address
seizures of property. Those cases left unchanged the rule that
seizures of property must be based on probable cause. See
supra at 462 U. S.
716 -717. The Terry balancing test should not be
wrenched from its factual and conceptual moorings.

															There are important reasons why balancing inquiries should not
be conducted except in the most limited circumstances. Terry and the cases that followed it established

															"isolated exceptions to the general rule that the Fourth
Amendment itself has already performed the constitutional balance
between police objectives and personal privacy." Michigan v. Summers, 452 U. S. 692 , 452 U. S. 706 (1981) (Stewart, J., dissenting).

															"[T]he protections intended by the Framers could all too easily
disappear in the consideration and balancing of the multifarious
circumstances presented by different cases, especially when that
balancing may be done in the first instance by police officers
engaged in the 'often competitive enterprise of ferreting out
crime.'" Dunaway v. New York, Page 462 U. S. 719 supra, at 442 U. S. 213 ,
quoting Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 (1948). The truth of this proposition is apparent when one
considers that the Court today has employed a balancing test "to
swallow the general rule that [seizures of property] are reasonable' only if based on probable cause." 442 U.S. at 442 U. S. 213 .
JUSTICE BLACKMUN's concern over "an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth
Amendment requires only that any seizure be reasonable," post at 462 U. S. 721 (BLACKMUN, J., concurring in judgment) (footnote omitted), is
certainly justified. III The Court also suggests today, in a discussion unnecessary to
the judgment, that exposure of respondent's luggage to a narcotics
detection dog "did not constitute a search' within the meaning
of the Fourth Amendment." Ante at 462 U. S. 707 .
In the District Court, respondent did "not contest the validity of
sniff searches per se. . . ." 498
F. Supp. 1217 , 1228 (EDNY 1980). The Court of Appeals did not reach or discuss the
issue. It was not briefed or argued in this Court. In short, I
agree with JUSTICE BLACKMUN that the Court should not address the
issue. See post at 462 U. S.
723 -724 (BLACKMUN, J., concurring in judgment). I also agree with JUSTICE BLACKMUN's suggestion, ibid., that the issue is more complex than the Court's discussion would
lead one to believe. As JUSTICE STEVENS suggested in objecting to
"unnecessarily broad dicta" in United States v. Knotts, 460 U. S. 276 (1983), the use of electronic detection techniques that enhance
human perception implicates "especially sensitive concerns." Id. at 460 U. S. 288 (opinion concurring in judgment). Obviously, a narcotics detection
dog is not an electronic detection device. Unlike the electronic
"beeper" in Knotts, however, a dog does more than merely
allow the police to do more efficiently what they could do using
only their own senses. A dog adds a new and previously unobtainable
dimension to human perception. The use of dogs, therefore,
represents a greater intrusion into an individual's Page 462 U. S. 720 privacy. Such use implicates concerns that are at least as
sensitive as those implicated by the use of certain electronic
detection devices. Cf. Katz v. United States, 389 U.
S. 347 (1967).

															I have expressed the view that dog sniffs of people constitute
searches. See Doe v. Renfrow, 451 U.
S. 1022 , 1025-1026 (1981) (BRENNAN, J., dissenting from
denial of certiorari). In Doe, I suggested that sniffs of
inanimate objects might present a different case. Id. at
1026, n. 4. In any event, I would leave the determination of
whether dog sniffs of luggage amount to searches, and the
subsidiary question of what standards should govern such
intrusions, to a future case providing an appropriate, and more
informed, basis for deciding these questions. IV Justice Douglas was the only dissenter in Terry. He
stated that

															"[t]here have been powerful hydraulic pressures throughout our
history that bear heavily on the Court to water down constitutional
guarantees and give the police the upper hand."

															392 U.S. at 392 U. S. 39 (dissenting opinion). Today, the Court uses Terry as a
justification for submitting to these pressures. Their strength is
apparent, for even when the Court finds that an individual's Fourth
Amendment rights have been violated, it cannot resist the
temptation to weaken the protections the Amendment affords.

															[ Footnote 2/1 ]

															The "seizure" at issue in Terry v. Ohio was the actual
physical restraint imposed on the suspect. 392 U.S. at 392 U. S. 19 . The
Court assumed that the officer's initial approach and questioning
of the suspect did not amount to a "seizure." Id. at 392 U. S. 19 , n.
16. The Court acknowledged, however, that "seizures" may occur
irrespective of the imposition of actual physical restraint. The
Court stated that

															"[i]t 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 392 U. S. 16 . See also id. at 392 U. S. 19 , n.
16. This standard, however, is easier to state than it is to apply. Compare United States v. Mendenhall, 446 U.
S. 544 , 446 U. S.
550 -557 (1980) (opinion of Stewart, J.), with
Florida v. Royer, 460 U. S. 491 , 460 U. S.
511 -512 (1983) (BRENNAN, J., concurring in result).

															[ Footnote 2/2 ]

															The stops " usually consume[d] no more than a minute.'" United States v. Brignoni-Ponce, 422 U.S. at 422 U. S.
880 . [ Footnote 2/3 ]

															In Michigan v. Summers, 452 U.
S. 692 (1981), the Court relied on Terry and
its progeny to hold that

															"a warrant to search for contraband founded on probable cause
implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted."

															452 U.S. at 452 U. S. 705 (footnotes omitted). The Court also relied on Terry in Pennsylvania v. Mimms, 434 U. S. 106 (1977), to uphold an officer's order to an individual to get out of
his car following a lawful stop of the vehicle. Both Summers and Mimms focused on seizures of
people.

															[ Footnote 2/4 ]

															Putting aside the legality of the independent seizure of the
luggage, the Court correctly points out that the seizure of luggage
"can effectively restrain the person" beyond the initial stop
"since he is subjected to the possible disruption of his travel
plans in order to remain with his luggage or to arrange for its
return." Ante at 462 U. S. 708 (footnote omitted).

															[ Footnote 2/5 ]

															To the extent that the Court relies on United States v. Van
Leeuwen, 397 U. S. 249 (1970), as support for its conclusion, see ante at 462 U. S.
705 -706, n. 6, such reliance is misplaced. As the Court
itself points out, the holding in Van Leeuwen was
expressly limited to the facts of that case. Ante at 462 U. S. 705 ,
n. 6. Moreover, the Court of Appeals more than adequately
distinguished Van Leeuwen. See 660 F.2d 44, 52-53
(CA2 1981). As the court stated:

															"Unlike the dispossession of hand baggage in a passenger's
custody, which constitutes a substantial intrusion, the mere
detention of mail not in his custody or control amounts to, at
most, a minimal or technical interference with his person or
effects, resulting in no personal deprivation at all." Ibid. JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, concurring
in the judgment.

															For me, the Court's analysis in 462 U. S. I
agree that, on the facts of this case, the detention of Place's
luggage amounted to, and was functionally identical with, a seizure
of his person. My concern with the Court's opinion has to do (a)
with its general discussion in 462 U. S. Ohio,@ 392 U. S. 1 (1968),
exception to the warrant Page 462 U. S. 721 and probable cause requirements, and (b) with the Court's haste
to resolve the dog-sniff issue. I In providing guidance to other courts, we often include in our
opinions material that, technically, constitutes dictum. I cannot
fault the Court's desire to set guidelines for Terry seizures of luggage based on reasonable suspicion. I am concerned,
however, with what appears to me to be an emerging tendency on the
part of the Court to convert the Terry decision into a
general statement that the Fourth Amendment requires only that any
seizure be reasonable. [ Footnote
3/1 ]

															I pointed out in dissent in Florida v. Royer, 460 U. S. 491 , 460 U. S. 513 (1983), that our prior cases suggest a two-step evaluation of
seizures under the Fourth Amendment. The Amendment generally
prohibits a seizure unless it is pursuant to a judicial warrant
issued upon probable cause and particularly describing the items to
be seized. See ante at 462 U. S. 701 ; Florida v. Royer, 460 U.S. at 460 U. S. 514 (dissenting opinion). The Court correctly observes that a warrant
may be dispensed with if the officer has probable cause and if some
exception to the warrant requirement, such as exigent
circumstances, Page 462 U. S. 722 is applicable. Ante at 462 U. S. 701 .
While the Fourth Amendment speaks in terms of freedom from
unreasonable seizures, the Amendment does not leave the
reasonableness of most seizures to the judgment of courts or
government officers: the Framers of the Amendment balanced the
interests involved and decided that a seizure is reasonable only if
supported by a judicial warrant based on probable cause. See
Texas v. Brown, 460 U. S. 730 , 460 U. S.
744 -745 (1983) (POWELL, J., concurring); United
States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 70 (1950) (Frankfurter, J., dissenting). Terry v. Ohio, however, teaches that, in some
circumstances, a limited seizure that is less restrictive than a
formal arrest may constitutionally occur upon mere reasonable
suspicion, if "supported by a special law enforcement need for
greater flexibility." Florida v. Royer, 460 U.S. at 460 U. S. 514 (dissenting opinion). See Michigan v. Summers, 452 U. S. 692 , 452 U. S. 700 (1981). When this exception to the Fourth Amendment's warrant and
probable cause requirements is applicable, a reviewing court must
balance the individual's interest in privacy against the
government's law enforcement interest, and determine whether the
seizure was reasonable under the circumstances. Id. at 452 U. S.
699 -701. Only in this limited context is a court
entitled to engage in any balancing of interests in determining the
validity of a seizure.

															Because I agree with the Court that there is a significant law
enforcement interest in interdicting illegal drug traffic in the
Nation's airports, ante at 462 U. S. 704 ; see Florida v. Royer, 460 U.S. at 460 U. S. 513 ,
519 (dissenting opinion), a limited intrusion caused by a temporary
seizure of luggage for investigative purposes could fall within the Terry exception. The critical threshold issue is the
intrusiveness of the seizure. [ Footnote
3/2 ] In this Page 462 U. S. 723 case, the seizure went well beyond a minimal intrusion, and
therefore cannot fall within the Terry exception. II The Court's resolution of the status of dog sniffs under the
Fourth Amendment is troubling for a different reason. The District
Court expressly observed that Place "does not contest the validity
of sniff searches per se. " 498 F.
Supp. 1217 , 1228 (EDNY 1980). [ Footnote 3/3 ] While
Place may have possessed such a claim, he chose not to raise it in
that court. The issue also was not presented to or decided by the
Court of Appeals. Moreover, contrary to the Court's apparent
intimation, ante at 462 U. S. 706 ,
an answer to the question is not necessary to the decision. For the
purposes of this case, the precise nature of the legitimate
investigative activity is irrelevant. Regardless of the validity of
a dog sniff under the Fourth Amendment, the seizure was too
intrusive. The Court has no need to decide the issue here.

															As a matter of prudence, decision of the issue is also unwise.
While the Court has adopted one plausible analysis of the issue,
there are others. For example, a dog sniff may be a search, but a
minimally intrusive one that could be justified in this situation
under Terry upon mere reasonable suspicion. Neither party
has had an opportunity to brief the issue, and the Court grasps for
the appropriate analysis of the problem. Although it is not
essential that the Court ever adopt the views of one of the
parties, it should not decide an issue on which neither party has
expressed any opinion at all. The Court is certainly in no position
to consider all the ramifications Page 462 U. S. 724 of this important issue. Certiorari is currently pending in two
cases that present the issue directly. United States v.
Beale, No. 82-674; Waltzer v. United States, No.
82-5491. There is no reason to avoid a full airing of the issue in
a proper case.

															For the foregoing reasons, I concur only in the judgment of the
Court.

															[ Footnote 3/1 ]

															The Court states that the applicability of the Terry exception

															"rests on a balancing of the competing interests to determine
the reasonableness of the type of seizure involved within the
meaning of 'the Fourth Amendment's general proscription against
unreasonable searches and seizures.'" Ante at 462 U. S. 703 ,
quoting Terry , 392 U.S. at 392 U. S. 20 . As
the context of the quotation from Terry makes clear,
however, this balancing to determine reasonableness occurs only
under the exceptional circumstances that justify the Terry exception:

															"But we deal here with an entire rubric of police conduct --
necessarily swift action predicated upon the on-the-spot
observations of the officer on the beat -- which historically has
not been, and, as a practical matter, could not be, subjected to
the warrant procedure. Instead, the conduct involved in this case
must be tested by the Fourth Amendment's general proscription
against unreasonable searches and seizures." Ibid. [ Footnote 3/2 ]

															I cannot agree with the Court's assertion that the diligence of
the police in acting on their suspicion is relevant to the extent
of the intrusion on Fourth Amendment interests. See ante at 462 U. S.
709 -710. It makes little difference to a traveler whose
luggage is seized whether the police conscientiously followed a
lead or bungled the investigation. The duration and intrusiveness
of the seizure is not altered by the diligence the police exercise.
Of course, diligence may be relevant to a court's determination of
the reasonableness of the seizure once it is determined that the
seizure is sufficiently nonintrusive as to be eligible for the Terry exception.

															[ Footnote 3/3 ]

															The District Court did hold that the dog sniff was not conducted
in a fashion that under the circumstances was "reasonably
calculated to achieve a tainted reaction from the dog." 498 F.
Supp. at 1228 . This, however, is a due process claim, not one
under the Fourth Amendment. Place apparently did not raise this
issue before the Court of Appeals.