U.S. Supreme Court United States v. Watson, 423
U.S. 411 (1976) United States v.
Watson No. 74-538 Argued October 8,
1975 Decided January 26,
1976 423
U.S. 411 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus A postal inspector received from an informant of known
reliability a stolen credit card that respondent had given the
informant to be used for their mutual advantage, and the inspector
was told by the informant that respondent had agreed to furnish
additional cards. At the inspector's suggestion, a meeting was
arranged between the informant and respondent for a few days later,
which took place at a restaurant. Upon a prearranged signal from
the informant that respondent had the additional cards, postal
officers made a warrantless arrest of respondent, removed him from
the restaurant, and gave him Miranda warnings. When a
search of respondent's person revealed no cards, a consented search
of his nearby car (after respondent had been cautioned that the
results could be used against him) revealed two additional cards in
the names of other persons. Following an unsuccessful motion to
suppress, these cards were used as evidence in respondent's trial,
which resulted in his conviction of possessing stolen mail. The
Court of Appeals reversed, ruling that the Fourth Amendment
prohibited use of that evidence because (1) notwithstanding
probable cause for respondent's arrest, the arrest was
unconstitutional because the postal inspector had failed to secure
an arrest warrant though he had time to do so, and (2) based on the
totality of the circumstances (including the illegality of the
arrest), respondent's consent to the car search was coerced and
thus, invalid. Held: 1. The arrest of respondent, having been based on probable cause
and made by postal officers acting in strict compliance with the
governing statute and regulations, did not violate the Fourth
Amendment. Pp. 423 U. S.
414 -424.

															2. Since the arrest comported with the Fourth Amendment,
respondent's consent to the car search was not, contrary to the
holding of the Court of Appeals, the product of an illegal arrest,
nor were there any other circumstances indicating that respondent's
consent was not his own "essentially free and unconstrained Page 423 U. S. 412 choice" because his "will ha[d] been . . . overborne and his
capacity for self-determination critically impaired," Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 225 .
Pp. 423 U. S. 424 425.

															504 F.2d 849, reversed.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J.,
filed a concurring opinion, post, p. 423 U. S. 425 .
STEWART, J., filed an opinion concurring in the result, post, p. 423 U. S. 433 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 423 U. S. 433 .
STEVENS, J., took no part in the consideration or decision of the
case.

															MR. JUSTICE WHITE delivered the opinion of the Court.

															This case presents questions under the Fourth Amendment as to
the legality of a warrantless arrest and of an ensuing search of
the arrestee's automobile carried out with his purported
consent. I The relevant events began on August 17, 1972, when an informant,
one Khoury, telephoned a postal inspector informing him that
respondent Watson was in possession of a stolen credit card and had
asked Khoury to cooperate in using the card to their mutual
advantage. On five to 10 previous occasions Khoury had provided the
inspector with reliable information on postal inspection matters,
some involving Watson. Later that day Page 423 U. S. 413 Khoury delivered the card to the inspector. On learning that
Watson had agreed to furnish additional cards, the inspector asked
Khoury to arrange to meet with Watson Khoury did so, a meeting
being scheduled for August 22. [ Footnote 1 ] Watson canceled that engagement, but at noon
on August 23, Khoury met with Watson at a restaurant designated by
the latter. Khoury had been instructed that, if Watson had
additional stolen credit cards, Khoury was to give a designated
signal. The signal was given, the officers closed in, and Watson
was forthwith arrested. He was removed from the restaurant to the
street, where he was given the warnings required by Miranda v.
Arizona, 384 U. S. 436 (1966). A search having revealed that Watson had no credit cards on
his person, the inspector asked if he could look inside Watson's
car, which was standing within view. Watson said, "Go ahead," and
repeated these words when the inspector cautioned that "[i]f I find
anything, it is going to go against you." Using keys furnished by
Watson, the inspector entered the car and found under the floor mat
an envelope containing two credit cards in the names of other
persons. These cards were the basis for two counts of a four-count
indictment charging Watson with possessing stolen mail in violation
of 18 U.S.C. § 1708. [ Footnote
2 ]

															Prior to trial, Watson moved to suppress the cards, claiming
that his arrest was illegal for want of probable cause and an
arrest warrant and that his consent to search the car was
involuntary and ineffective because he had not been told that he
could withhold consent. Page 423 U. S. 414 The motion was denied, and Watson was convicted of illegally
possessing the two cards seized from his car. [ Footnote 3 ]

															A divided panel of the Court of Appeals for the Ninth Circuit
reversed, 504 F.2d 849 (1974), ruling that the admission in
evidence of the two credit cards found in the car was prohibited by
the Fourth Amendment. In reaching this judgment, the court decided
two issues in Watson's favor. First, notwithstanding its agreement
with the District Court that Khoury was reliable and that there was
probable cause for arresting Watson, the court held the arrest
unconstitutional because the postal inspector had failed to secure
an arrest warrant, although he concededly had time to do so.
Second, based on the totality of the circumstances, one of which
was the illegality of the arrest, the court held Watson's consent
to search had been coerced, and hence was not a valid ground for
the warrantless search of the automobile. We granted certiorari.
420 U.S. 924 (1975). II A major part of the Court of Appeals' opinion was its holding
that Watson's warrantless arrest violated the Fourth Amendment.
Although it did not expressly do so, it may have intended to
overturn the conviction on the independent ground that the two
credit cards were the inadmissible fruits of an unconstitutional
arrest. Cf. Brown v. Illinois, 422 U.
S. 590 (1975). However that may be, the Court of Appeals
treated the illegality of Watson's arrest as an important factor in
determining the voluntariness of his consent to search his car. We
therefore deal first with the arrest issue.

															Contrary to the Court of Appeals' view, Watson's arrest was not
invalid because executed without a warrant. Page 423 U. S. 415 Title 18 U.S.C. § 3061(a)(3) expressly empowers the Board of
Governors of the Postal Service to authorize Postal Service
officers and employees "performing duties related to the inspection
of postal matters" to

															"make arrests without warrant for felonies cognizable under the
laws of the United States if they have reasonable grounds to
believe that the person to be arrested has committed or is
committing such a felony."

															By regulation, 39 CFR § 232.5(a)(3) (1975), and in identical
language, the Board of Governors has exercised that power and
authorized warrantless arrests. Because there was probable cause in
this case to believe that Watson had violated § 1708, the inspector
and his subordinates, in arresting Watson, were acting strictly in
accordance with the governing statute and regulations. The effect
of the judgment of the Court of Appeals was to invalidate the
statute as applied in this case and as applied to all the
situations where a court fails to find exigent circumstances
justifying a warrantless arrest. We reverse that judgment.

															Under the Fourth Amendment, the people are to be

															"secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, . . . and no Warrants shall
issue, but upon probable cause. . . ."

															Section 3061 represents a judgment by Congress that it is not
unreasonable under the Fourth Amendment for postal inspectors to
arrest without a warrant provided they have probable cause to do
so. [ Footnote 4 ] This was not
an Page 423 U. S. 416 isolated or quixotic judgment of the legislative branch. Other
federal law enforcement officers have been expressly authorized by
statute for many year to make felony arrests on probable cause but
without a warrant. This is true of United States marshals, 18
U.S.C. § 3053, and of agents of the Federal Bureau of
Investigation, 18 U.S.C. § 3052; the Drug Enforcement
Administration, 84 Stat. 1273, 21 U.S.C. § 878; the Secret Service,
18 U.S.C. § 3056(a); and the Customs Service, 26 U.S.C. § 7607.
[ Footnote 5 ]

															Because there is a "strong presumption of constitutionality due
to an Act of Congress, especially when it turns on what is reasonable,'" "[o]bviously the Court should be reluctant to decide that a
search thus authorized by Congress was unreasonable, and that the
Act was therefore unconstitutional." United States v. Di Re, 332 U.
S. 581 , 332 U. S. 585 (1948). Moreover, there is nothing in the Court's prior cases
indicating that, under the Page 423 U. S. 417 Fourth Amendment, a warrant is required to make a valid arrest
for a felony. Indeed, the relevant prior decisions are uniformly to
the contrary.

															"The usual rule is that a police officer may arrest without
warrant one believed by the officer upon reasonable cause to have
been guilty of a felony. . . ." Carroll v. United States, 267 U.
S. 132 , 267 U. S. 156 (1925). In Henry v. United States, 361 U. S.
98 (1959), the Court dealt with an FBI agent's
warrantless arrest under 18 U.S.C. § 3052, which authorizes a
warrantless arrest where there are reasonable grounds to believe
that the person to be arrested has committed a felony. The Court
declared that "[t]he statute states the constitutional standard. .
. ." 361 U.S. at 361 U. S. 100 .
The necessary inquiry, therefore, was not whether there was a
warrant or whether there was time to get one, but whether there was
probable cause for the arrest. In Abel v. United States, 362 U. S. 217 , 362 U. S. 232 (1960), the Court sustained an administrative arrest made without
"a judicial warrant within the scope of the Fourth Amendment." The
crucial question in Draper v. United States, 358 U.
S. 307 (1959), was whether there was probable cause for
the warrantless arrest. If there was, the Court said, "the arrest,
though without a warrant, was lawful. . . ." Id. at 358 U. S. 310 . Ker v. California, 374 U. S. 23 , 374 U. S. 34 -35
(1963) (opinion of Clark, J.), reiterated the rule that "[t]he
lawfulness of the arrest without warrant, in turn, must be based
upon probable cause . . . ," and went on to sustain the warrantless
arrest over other claims going to the mode of entry. Just last
Term, while recognizing that maximum protection of individual
rights could be assured by requiring a magistrate's review of the
factual justification prior to any arrest, we stated that "such a
requirement would constitute an intolerable handicap for legitimate
law enforcement," and noted that the Court "has never invalidated
an arrest supported by probable cause solely Page 423 U. S. 418 because the officers failed to secure a warrant." Gerstein
v. Pugh, 420 U.S.
103 , 420 U. S. 113 (1975). [ Footnote 6 ]

															The cases construing the Fourth Amendment thus reflect the
ancient common law rule that a peace officer was permitted to
arrest without a warrant for a misdemeanor or felony committed in
his presence as well as for a felony not committed in his presence
if there was reasonable ground for making the arrest. 10 Halsbury's
Laws of England 344-345 (3d ed.1955); 4 W. Blackstone, Commentaries
*292; 1 J. Stephen, A History of the Criminal Law of England 193
(1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest
Without a Warrant. 22 Mich.L.Rev. 541, 547-550, 686-688 (1924); Page 423 U. S. 419 Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 30 (K B.
1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108
Eng.Rep. 585 (K.B. 1827). This has also been the prevailing rule
under state constitutions and statutes.

															"The rule of the common law, that a peace officer or a private
citizen may arrest a felon without a warrant, has been generally
held by the courts of the several States to be in force in cases of
felony punishable by the civil tribunals." Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S. 504 (1885).

															In Rohan v. Sawin, 59 Mass. 281 (1850), a false arrest
case, the Supreme Judicial Court of Massachusetts held that the
common law rule obtained in that State. Given probable cause to
arrest,

															"[t]he authority of a constable, to arrest without warrant, in
cases of felony, is most fully established by the elementary books,
and adjudicated cases." Id. at 284. In reaching this judgment the court
observed:

															"It has been sometimes contended that an arrest of this
character, without a warrant, was a violation of the great
fundamental principles of our national and state constitutions
forbidding unreasonable searches and arrests except by warrant
founded upon a complaint made under oath. Those provisions
doubtless had another and different purpose, being in restraint of
general warrants to make searches and requiring warrants to issue
only upon a complaint made under oath. They do not conflict with
the authority of constables or other peace officers, or private
persons under proper limitations, to arrest without warrant those
who have committed felonies. The public safety, and the due
apprehension of criminals, charged with heinous offences,
imperiously require that such arrests should be made without
warrant by officers of the law." Id. at 284-285. Page 423 U. S. 420 Also rejected, id. at 285-286, was the trial court's
view that, to justify a warrantless arrest, the State must show

															"an immediate necessity therefor, arising from the danger, that
the plaintiff would otherwise escape, or secrete the stolen
property, before a warrant could be procured against him."

															The Supreme Judicial Court ruled that there was no "authority
for thus restricting a constable in the exercise of his authority
to arrest for a felony without a warrant." Id. at 286.
Other early cases to similar effect were Wakely v. Hart, 6
Binn. 316 (Pa. 1814); Tolley v. Mix, 3 Wend. 350
(N.Y.Sup.Ct. 1829); State v. Brown, 5 Del. 505
(Ct.Gen.Sess. 1853); Johnson v. State, 30 Ga. 426 (1860); Wade v. Chafee, 8 R.I. 224 (1865). See Reuck v.
McGregor, 32 N.J.L. 70, 74 (Sup.Ct. 1866); Baltimore &
O. R. Co. v. Cain, 81 Md. 87, 100, 102, 31 A. 801, 803, 804
(1895). [ Footnote 7 ]

															Because the common law rule authorizing arrests without a
warrant generally prevailed in the States, it is important for
present purposes to note that, in 1792, Congress invested United
States marshals and their deputies with

															"the same powers in executing the laws of the United States as
sheriffs and their deputies in the several states have by law in
executing the laws of their respective states."

															Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress
thus saw no inconsistency between the Fourth Amendment and
legislation giving United States marshals the same power as local
pace officers to arrest for a felony without a warrant. [ Footnote 8 ] This provision equating the
power of federal marshals Page 423 U. S. 421 with those of local sheriffs was several times reenacted,
[ Footnote 9 ] and is today § 570
of Title 28 of the United States Code. That provision, however, was
supplemented in 1935 by § 504a of the Judicial Code, [ Footnote 10 ] which, in its essential
elements, is now 18 U.S.C. § 3053, and which expressly empowered
marshals to make felony arrests without warrant and on probable
cause. It was enacted to furnish a federal standard independent of
the vagaries of state laws, the Committee Report remarking that,
under existing law, a

															"marshal or deputy marshal may make an arrest without a warrant
within his district in all cases where the sheriff might do so
under the State statutes."

															H.R.Rep. No. 283, 74th Cong., 1st Sess., 1 (1935). See
United States v. Riggs, 474 F.2d 699, 702-703, n. 2 (CA2), cert. denied, 414 U.S. 820 (1973).

															The balance struck by the common law in generally authorizing
felony arrests on probable cause, but without a warrant, has
survived substantially intact. It appears Page 423 U. S. 422 in almost all of the States in the form of express statutory
authorization. In 1963, the American Law Institute undertook the
task of formulating a model statute governing police powers and
practice in criminal law enforcement and related aspects of
pretrial procedure. In 1975, after years of discussion, A Model
Code of Pre-arraignment Procedure was proposed. Among its
provisions was § 120.1, which authorizes an officer to take a
person into custody if the officer has reasonable cause to believe
that the person to be arrested has committed a felony or has
committed a misdemeanor or petty misdemeanor in his presence.
[ Footnote 11 ] The commentary
to this section said: "The Code thus adopts the traditional and
almost universal standard for arrest without a warrant." [ Footnote 12 ] Page 423 U. S. 423 This is the rule Congress has long directed its principal law
enforcement officers to follow. Congress has plainly decided
against conditioning warrantless arrest power on proof of exigent
circumstances. [ Footnote 13 ]
Law enforcement officers may find it wise to seek arrest warrants
where practicable to do so, and their judgments about probable
cause may be more readily accepted where backed by a warrant issued
by a magistrate. See United States v. Ventresca, 380 U. S. 102 , 380 U. S. 106 (1965); Aguilar v. Texas, 378 U.
S. 108 , 378 U. S. 111 (1964); Wong Sun v. United States, 371 U.
S. 471 , 371 U. S. 479 480 (1963). But we decline to transform this judicial preference
into a constitutional rule when the judgment of the Nation and
Congress has for so long been to authorize warrantless public
arrests on probable cause, rather than to encumber criminal
prosecutions with endless litigation with respect to the existence
of exigent circumstances, whether it was practicable Page 423 U. S. 424 to get a warrant, whether the suspect was about to flee, and the
like.

															Watson's arrest did not violate the Fourth Amendment, and the
Court of Appeals erred in holding to the contrary. III Because our judgment is that Watson's arrest comported with the
Fourth Amendment, Watson's consent to the search of his car was not
the product of an illegal arrest. To the extent that the issue of
the voluntariness of Watson's consent was resolved on the premise
that his arrest was illegal, the Court of Appeals was also in
error.

															We are satisfied in addition that the remaining factors relied
upon by the Court of Appeals to invalidate Watson's consent are
inadequate to demonstrate that, in the totality of the
circumstances, Watson's consent was not his own "essentially free
and unconstrained choice" because his "will ha[d] been overborne
and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 225 (1973). There was no overt act or threat of force against Watson
proved or claimed. There were no promises made to him and no
indication of more subtle forms of coercion that might flaw his
judgment. He had been arrested and was in custody, but his consent
was given while on a public street, not in the confines of the
police station. Moreover, the fact of custody alone has never been
enough in itself to demonstrate a coerced confession or consent to
search. Similarly, under Schneckloth, the absence of proof
that Watson knew he could withhold his consent, though it may be a
factor in the overall judgment, is not to be given controlling
significance. There is no indication in this record that Watson was
a newcomer Page 423 U. S. 425 to the law, [ Footnote 14 ]
mentally deficient, or unable in the face of a custodial arrest to
exercise a free choice. He was given Miranda warnings, and
was further cautioned that the results of the search of his car
could be used against him. He persisted in his consent.

															In these circumstances, to hold that illegal coercion is made
out from the fact of arrest and the failure to inform the arrestee
that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard
that we reaffirmed in that case.

															In consequence, we reverse the judgment of the Court of
Appeals. So ordered. MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															In the meantime, the inspector had verified that the card was
stolen.

															[ Footnote 2 ]

															Title 18 U.S.C. § 1708 punishes the theft of mail as well as the
possession of stolen mail. The punishment is a fine of not more
than $2,000 or imprisonment for not more than five years, or
both.

															[ Footnote 3 ]

															Watson was acquitted on the second count. The fourth was
dismissed prior to trial.

															[ Footnote 4 ]

															At least since approval of the Act of June 10, 1955, c. 137, §
203, 69 Stat. 106, 39 U.S.C. § 3523(a)(2)(K) (1964 ed.), postal
inspectors' duties have been thought to permit arrest without a
warrant upon probable cause. Compare United States v.
Helbock, 76 F. Supp.
985 (Ore.1948), with United States v. Alexander, 415
F.2d 1352 (CA7 1969), cert. denied, 397 U.S. 1014 (1970); Kelley v. Dunne, 344 F.2d 129 (CA1 1965); and United
States v. Bell, 294 F. Supp. 1314 (ND Ill.1968). The Court of
Appeals for the Ninth Circuit held, however, that § 3523(a)(2)(K)
did not give the necessary express power to arrest, but that a
warrantless arrest by a postal inspector could be upheld by resort
to a citizen's power to arrest. United States v. DeCatur, 430 F.2d 365 (1970); Neggo v. United States, 390 F.2d 609
(1968); Ward v. United States, 316 F.2d 113, cert.
denied, 375 U.S. 862 (1963).

															In 1968, in the face of confusion generated by these decisions
and two others striking down warrantless arrests by postal
inspectors as not authorized by federal statute or by state law, Alexander v. United States, 390 F.2d 101 (CA5 1968); United States v. Moderacki, 280 F.
Supp. 633 (Del.1968), the Congress enacted 18 U.S.C. § 3061 to
make clear that postal inspectors are empowered to arrest without
warrant upon probable cause. Pub.L. 90-560, § 5(a), 82 Stat. 998;
H.R.Conf.Rep. No.1918, 90th Cong., 2d Sess., 6 (1968); H.R.Rep. No.
1725, 90th Cong., 2d Sess. (1968); 114 Cong.Rec. 20914-20915,
26928, 28864-28865 (1968).

															[ Footnote 5 ]

															There are other federal officers subject to a more restrictive
statutory standard. See, e.g., 18 U.S.C. § 3050, with
respect to employees of the Bureau of Prisons.

															[ Footnote 6 ]

															In the case before us, the Court of Appeals relied heavily, but
mistakenly, on Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S.
480 -481 (1971), for, as we noted in Gerstein v.
Pugh, 420 U.S. at 420 U. S. 113 n. 13, the still unsettled question posed in that part of the Coolidge opinion was "whether and under what circumstances
an officer may enter a suspect's home to make a warrantless
arrest." Watson's midday public arrest does not present that
question.

															In its proposed Model Code of Pre-arraignment Procedure, the
American Law Institute has addressed the question, and recommends
that an officer who is empowered to make an arrest and has probable
cause to believe the person to be arrested is on private premises
be authorized to demand entry to such premises, and thereupon to
enter to make an arrest. ALI, Model Code of Pre-arraignment
Procedure § 120.6(1) (1975). In certain cases of necessity,
however, notification and demand are not required. § 120.6(2).
Authority to make nighttime arrests on private premises is
restricted to arrests with warrants authorizing nighttime execution
and to certain cases of necessity. § 120.6(3). The commentary
states that 24 States (and the District of Columbia) authorize
forcible entry whenever there is authority to arrest, six whenever
the arrest is under a warrant or for a felony, six whenever the
arrest is under a warrant, and two whenever the arrest is for a
felony. Id. at 310, 696-697. Of these jurisdictions, all
but three have prior notice requirements for entries to make an
arrest similar to those 18 U.S.C. § 3109 imposes on entries to
execute a search warrant. ALI Model Code, supra at
310-313.

															[ Footnote 7 ]

															As Professor Wilgus observed in his article Arrest Without A
Warrant, 22 Mich.L.Rev. 541, 549-550 (1924) (footnote omitted),

															"[i]t was early argued that similar provisions [to the Fourth
Amendment of the Constitution] in state constitutions forbade
arrests without a warrant; it was ruled otherwise as to arrests by
officers and private persons according to the common law."

															[ Footnote 8 ]

															Of equal import is the rule recognized by this Court that even
in the absence of a federal statute granting or restricting the
authority of federal law enforcement officers, "the law of the
state where an arrest without warrant takes place determines its
validity." United States v. Di Re, 332 U.
S. 581 , 332 U. S. 589 (1948). Accord, Miller v. United States, 357 U.
S. 301 , 357 U. S. 305 (1958); Johnson v. United States, 333 U. S.
10 , 333 U. S. 15 n.
5 (1948); Bad Elk v. United States, 177 U.
S. 529 , 177 U. S. 535 (1900). This rule is consistent with the express statutory
authority of United States marshals discussed in the text, as well
as with the Act of Sept. 24, 1789, c. 20, § 33, 1 Stat. 91,
providing that, for any offense against the United States, the
offender may be arrested by any judge or justice of the United
States "agreeably to the usual mode of process against offenders in
such state" as he might be found. See United States v. Di Re,
supra at 332 U. S. 589 n. 8.

															[ Footnote 9 ]

															Act of Feb. 28, 1795, c. 36, § 9, 1 Stat. 425; Act of July 29,
1861, c. 25, § 7, 12 Stat. 282; Rev.Stat. § 788 (1874); Judicial
Code of 1948, § 549, 62 Stat. 912.

															[ Footnote 10 ]

															Act of June 15, 1935, c. 259, § 2, 49 Stat. 378.

															[ Footnote 11 ]

															Section 120.1 of the Model Code provides, in pertinent part:

															"(1) Authority to Arrest Without a Warrant. A law
enforcement officer may arrest a person without a warrant if the
officer has reasonable cause to believe that such person has
committed"

															"(a) a felony;"

															"(b) a misdemeanor, and the officer has reasonable cause to
believe that such person"

															"(i) will not be apprehended unless immediately arrested;
or"

															"(ii) may cause injury to himself or others or damage to
property unless immediately arrested; or"

															"(c) a misdemeanor or petty misdemeanor in the officer's
presence."

															[ Footnote 12 ] Id. at 289 (footnote omitted). The commentary goes on
to say with respect to § 120.1:

															"This Section does not require an officer to arrest under a
warrant even if a reasonable opportunity to obtain a warrant
exists. As to arrests on the street, such a requirement would be
entirely novel. Moreover the need for it is not urgent, and the
subsequent inquiry such a requirement would authorize would be
indeterminate and difficult." Id. at 303 (footnotes omitted).

															As the commentary notes, id. at 289 n. 1, a statute in
the State of Georgia is more restrictive of the arrest power than
the general standard. Ga.Code Ann. § 27-207(a) (Supp. 1975). See also Colo.Rev.Stat.Ann. § 16-3-102 (1973), which
provides that an arrest warrant should be obtained "when
practicable," and Mont.Rev.Codes Ann. § 95-608(d) (1969), which
authorizes a warrantless arrest if "existing circumstances require"
it. A North Carolina statute, N.C.Gen.Stat. § 151 (1965), similar
to the Georgia statute, was replaced in 1975 by a provision
permitting warrantless felony arrests on probable cause.
N.C.Gen.Stat. § 15A-401(b)(2) (1975).

															[ Footnote 13 ]

															Until 1951, 18 U.S.C. § 3052 conditioned the warrantless arrest
powers of the agents of the Federal Bureau of Investigation on
there being reasonable grounds to believe that the person would
escape before a warrant could be obtained. The Act of Jan. 10,
1951, c. 1221, § 1, 64 Stat. 1239, eliminated this condition. The
House Report explained the purpose of the amendment, H.R.Rep. No.
3228, 81st Cong., 2d Sess., 1-2 (1950), and the amendment was given
effect by the courts in accordance with its terms. Compare
United States v. Coplon, 185 F.2d 629, 633-636 (CA2 1950), cert. denied, 342 U.S. 920 (1952), with Coplon v.
United States, 89 U.S.App.D.C. 103, 108-109, 191 F.2d 749,
753-754 (1951), cert. denied, 342 U.S. 926 (1952).

															[ Footnote 14 ]

															On the contrary, the inspector making the arrest in this case
had arrested Watson in 1971 for mail theft. Those charges were
dropped when Watson cooperated with the prosecution. During the
ensuing two years, he also furnished information to the
authorities.

															MR JUSTICE POWELL, concurring.

															Although I concur in the opinion of the Court, I write to
express additional views. I note at the outset that the case could
be disposed of on the ground that respondent's consent to the
search was plainly voluntary. Schneckloth v. Bustamonte, 412 U. S. 218 (1973). Indeed, the evidence that his consent was the product of
free will is so overwhelming that I would have held the consent
voluntary even on the assumption that the preceding warrantless
arrest was unconstitutional, and that the doctrine of Wong Sun
v. United States, 371 U. S. 471 (1963), therefore was applicable. See Brown v. Illinois, 422 U. S. 590 (1975). The Court's different route to Page 423 U. S. 426 the same result requires, however, an inquiry into the validity
of the arrest itself. I Respondent was arrested without a warrant in a public restaurant
six days after postal inspectors learned from a reliable source
that he possessed stolen credit cards in violation of 18 U.S.C. §
1708. The Government made no effort to show that circumstances
precluded the obtaining of a warrant, relying instead for the
validity of the arrest solely upon the showing of probable cause to
believe that respondent had committed a felony. Respondent
contends, and the Court of Appeals held, that the absence of any
exigency justifying the failure to procure a warrant renders this
arrest violative of the Fourth Amendment.

															In reversing the Court of Appeals, the Court concludes that
nothing in our previous cases involving warrantless arrests
supports the position of respondent and the Court of Appeals. See, e.g., Gerstein v. Pugh, 420 U.
S. 103 , 420 U. S. 113 (1975). But it is fair to say, I think, that the prior decisions of
the Court have assumed the validity of such arrests without
addressing in a reasoned way the analysis advanced by respondent.
[ Footnote 2/1 ] Today's decision
is Page 423 U. S. 427 the first square holding that the Fourth Amendment permits a
duly authorized law enforcement officer to make a warrantless
arrest in a public place even though he had adequate opportunity to
procure a warrant after developing probable cause for arrest.

															On its face, our decision today creates a certain anomaly. There
is no more basic constitutional rule in the Fourth Amendment area
than that which makes a warrantless search unreasonable except in a
few "jealously and carefully drawn" exceptional circumstances. Jones v. United States, 357 U. S. 493 , 357 U. S. 499 (1958); see Almeida-Sanchez v. United States, 413 U.
S. 266 , 413 U. S.
279 -280 (1973) (POWELL, J., concurring); United
States v. United States District Court, 407 U.
S. 297 , 407 U. S.
314 -321 (1972); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S.
454 -455 (1971). On more than one occasion, this Court
has rejected an argument that a law enforcement officer's own
probable cause to search a private place for contraband or evidence
of crime should excuse his otherwise unexplained failure to procure
a warrant beforehand. Id. at 403 U. S. 450 ; Katz v. United States, 389 U. S. 347 , 389 U. S.
356 -358 Page 423 U. S. 428 (1967). In short, the course of judicial development of the
Fourth Amendment with respect to searches has remained true to the
principles so well expressed by Mr. Justice Jackson:

															"Any assumption that evidence sufficient to support a
magistrate's disinterested determination to issue a search warrant
will justify the officers in making a search without a warrant
would reduce the Amendment to a nullity and leave the people's
homes secure only in the discretion of police officers. . . . When
the right of privacy must reasonably yield to the right of search
is, as a rule, to be decided by a judicial officer, not by a
policeman or government enforcement agent." Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 (1948).

															Since the Fourth Amendment speaks equally to both searches and
seizures, and since an arrest, the taking hold of one's person, is
quintessentially a seizure, it would seem that the constitutional
provision should impose the same limitations upon arrests that it
does upon searches. Indeed, as an abstract matter, an argument can
be made that the restrictions upon arrest perhaps should be
greater. A search may cause only annoyance and temporary
inconvenience to the law-abiding citizen, assuming more serious
dimension only when it turns up evidence of criminality. An arrest,
however, is a serious personal intrusion regardless of whether the
person seized is guilty or innocent. Although an arrestee cannot be
held for a significant period without some neutral determination
that there are grounds to do so, see Gerstein, supra, no
decision that he should go free can come quickly enough to erase
the invasion of his privacy that already will have occurred. See Chimel v. California, 395 U.
S. 752 , 395 U. S. 776 (1969) (WHITE, J., dissenting); cf. 414 U.
S. Page 423 U. S. 429 Robinson, 414 U. S. 218 , 414 U. S.
237 -238 (1973) (POWELL, J., concurring). Logic therefore
would seem to dictate that arrests be subject to the warrant
requirement at least to the same extent as searches.

															But logic sometimes must defer to history and experience. The
Court's opinion emphasizes the historical sanction accorded
warrantless felony arrests. In the early days of the common law,
most felony arrests were made upon personal knowledge, and without
warrants. So established were such arrests as the usual practice
that Lord Coke seriously questioned whether a justice of the peace,
receiving his information second-hand instead of from personal
knowledge, even could authorize an arrest by warrant. 4 E. Coke,
Institutes 177 (6th ed. 1681). By the late 18th century, it had
been firmly established by Blackstone, with an intervening assist
from Sir Matthew Hale, that magistrates could issue arrest warrants
upon information supplied by others. 4 W. Blackstone, Commentaries
*290; see 2 M. Hale, Pleas of the Crown *108-110. But
recognition of the warrant power cast no doubt upon the validity of
warrantless felony arrests, which continued to be practiced and
upheld as before. 4 W. Blackstone, supra at *282; 1 J.
Chitty, Criminal Law *14-15. There is no historical evidence that
the Framers or proponents of the Fourth Amendment, outspokenly
opposed to the infamous general warrants and writs of assistance,
were at all concerned about warrantless arrests by local constables
and other peace officers. See N. Lasson, The History and
Development of the Fourth Amendment to the United States
Constitution 79-105 (1937); cf. Gerstein v. Pugh, 420 U.S.
at 420 U. S.
114 -116. As the Court today notes, the Second Congress'
passage of an Act authorizing such arrests [ Footnote 2/2 ] so soon after the adoption of the Fourth
Amendment Page 423 U. S. 430 itself underscores the probability that the constitutional
provision was intended to restrict entirely different
practices.

															The historical momentum for acceptance of warrantless arrests,
already strong at the adoption of the Fourth Amendment, has gained
strength during the ensuing two centuries. Both the judiciary and
the legislative bodies of this Nation repeatedly have placed their
imprimaturs upon the practice and, as the Government emphasizes,
law enforcement agencies have developed their investigative and
arrest procedures upon an assumption that warrantless arrests were
valid so long as based upon probable cause. The decision of the
Court of Appeals in this case was virtually unprecedented.
[ Footnote 2/3 ] Of course, no
practice that is inconsistent with constitutional protections can
be saved merely by appeal to previous uncritical acceptance. But
the warrantless felony arrest, long preferred at common law and
unimpeached at the passage of the Fourth Amendment, is not such a
practice. Given the revolutionary implications of such a holding, a
declaration at this late date that warrantless felony arrests are
constitutionally infirm would have to rest upon reasons more
substantial than a desire to harmonize the rules for arrest with
those governing searches. Cf. United States v. Robinson,
supra at 414 U. S.
230 . Page 423 U. S. 431 Moreover, a constitutional rule permitting felony arrests only
with a warrant or in exigent circumstances could severely hamper
effective law enforcement. Good police practice often requires
postponing an arrest, even after probable cause has been
established, in order to place the suspect under surveillance or
otherwise develop further evidence necessary to prove guilt to a
jury. [ Footnote 2/4 ] Under the
holding of the Court of Appeals, such additional investigative work
could imperil the entire prosecution. Should the officers fail to
obtain a warrant initially, and later be required by unforeseen
circumstances to arrest immediately with no chance to procure a
last-minute warrant, they would risk a court decision that the
subsequent exigency did not excuse their failure to get a warrant
in the interim since they first developed probable cause. If the
officers attempted to meet such a contingency Page 423 U. S. 432 by procuring a warrant as soon as they had probable cause, and
then merely held it during their subsequent investigation, they
would risk a court decision that the warrant had grown stale by the
time it was used. [ Footnote 2/5 ]
Law enforcement personnel caught in this squeeze could ensure
validity of their arrests only by obtaining a warrant and arresting
as soon as probable cause existed, thereby foreclosing the
possibility of gathering vital additional evidence from the
suspect's continued actions.

															In sum, the historical and policy reasons sketched above fully
justify the Court's sustaining of a warrantless arrest upon
probable cause, despite the resulting divergence between the
constitutional rule governing searches and that now held applicable
to seizures of the person. [ Footnote
2/6 ] II Finally, I share the view expressed in the opinion of MR.
JUSTICE STEWART. It makes clear that we do not today consider or
decide whether or under what circumstances Page 423 U. S. 433 an officer lawfully may make a warrantless arrest in a private
home or other place where the person has a reasonable expectation
of privacy. [ Footnote 2/7 ]

															[ Footnote 2/1 ]

															None of the decisions cited by the Court today squarely faced
the issue. In Henry v. United States, 361 U. S.
98 (1959), for example, the Court declared that 18
U.S.C. § 3052, which authorizes an FBI agent to make a warrantless
arrest when he has reasonable grounds to believe that a person has
committed a felony, "states the constitutional standard." 361 U.S.
at 361 U. S. 100 .
But that declaration was made without discussion, and the issue
actually presented to and a addressed by the Court was whether
there was, in fact, probable cause for the arrest in that case.
Similarly, Draper v. United States, 358 U.
S. 307 (1959), stands only for the validity of a
warrantless arrest made with probable cause to believe that the
arrestee had committed an offense in the arresting officer's
presence. See id. at 313. As this Court had noted in an
earlier case, such an arrest presents no danger that an innocent
person might be ensnared, since the officer observes both the crime
and the culprit with his own eyes; there thus would be no reason to
require a warrant in that particular situation even if there might
be in others. Trupiano v. United States, 334 U.
S. 699 , 334 U. S. 705 (1948). Another case cited by the Court, Carroll v. United
States, 267 U. S. 132 (1925), involved no challenge to an arrest. Nor did Abel v.
United States, 362 U. S. 217 (1960), in which the Court refused to consider petitioner's
challenge to his arrest under less than a judicial warrant because
of his failure to raise the issue in the lower courts. See
id. at 362 U. S.
230 -232. Finally, in Ker v. California, 374 U. S. 23 (1963), the Court addressed only the questions of whether there was
probable cause for arrest and whether the method of entry for the
purpose of arrest was reasonable; no issue arose as to whether a
warrant was necessary for either the arrest or the entry.

															[ Footnote 2/2 ]

															Act of May 2, 1792, c. 18, § 9, 1 Stat. 265; See 28
U.S.C. § 570.

															[ Footnote 2/3 ]

															Respondent has cited no other decision, state or federal, in
support of the Court of Appeals' result in this case. The
Government stated in its petition that the decision below was the
first of which it was aware that required a warrant for an arrest
in a public place. The Court of Appeals relied upon part of this
Court's discussion in Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S.
480 -481 (1971), but, as other courts have recognized,
that discussion had nothing to do with warrantless arrests in
public places. See, e.g., United States v. Miles, 468 F.2d
482, 486-487, and n. 6 (CA3 1972); United States v.
Bazinet, 462 F.2d 982, 987 (CA8), cert. denied sub nom.
Knox v. United States, 409 U.S. 1010 (1972).

															[ Footnote 2/4 ]

															This Court has not attempted a more precise definition of
probable cause than the one in Carroll v. United States, 267 U.S. at 267 U. S. 161 ,
where the standard was affirmed as

															"facts and circumstances . . . such as to warrant a man of
[reasonable] prudence and caution in believing that the offense has
been committed"

															and, of course, that the person to be arrested was the offender. See generally Henry v. United States, 361 U.S. at 361 U. S.
100 -102. Whatever evidence may be necessary to establish
probable cause in a given case, however, it is clear that it never
need rise to the level required to prove guilt beyond a reasonable
doubt. Id. at 361 U. S. 102 ; Draper v. United States, 358 U.S. at 358 U. S.
311 -312, and n. 4. The different standards for arrest
and conviction reflect a recognition of society's valid interest in
the earliest detention of suspected criminals that is consistent
with the individual's interest in freedom from arbitrary
interference with his liberty. See Brinegar v. United
States, 338 U. S. 160 , 338 U. S. 176 (1949). But society's equally valid interest in ultimate conviction
of the guilty requires the police sometimes to continue their
investigation after establishing probable cause to arrest, even if
doing so means they have to leave a suspect at large pending such
investigation. See generally ALI, A Model Code of
Pre-arraignment Procedure § 120.1, Commentary, pp. 289, 292-296
(1975).

															[ Footnote 2/5 ]

															The probable cause to support issuance of an arrest warrant
normally would not grow stale as easily as that which supports a
warrant to search a particular place for particular objects. This
is true because, once there is probable cause to believe that
someone is a felon, the passage of time often will bring new
supporting evidence. But in some cases, the original grounds
supporting the warrant could be disproved by subsequent
investigation that at the same time turns up wholly new evidence
supporting probable cause on a different theory. In those cases,
the warrant could be stale because based upon discredited
information.

															[ Footnote 2/6 ]

															I do not understand today's decision to suggest any retreat from
our longstanding position that such an arrest should receive
careful judicial scrutiny if challenged.

															"An arrest without a warrant bypasses the safeguards provided by
an objective determination of probable cause, and substitutes
instead the far less reliable procedure of an 'after the event'
justification for the arrest . . . too likely to be subtly
influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U. S. 89 , 379 U. S. 96 (1964).

															[ Footnote 2/7 ] Compare Dorman v. United States, 140 U.S.App.D.C. 313,
318-319, 435 F.2d 385, 390-391 (1970) (en banc) (warrant required,
absent exigent circumstances, for entry into a suspect's home for
purpose of arrest), with People v. Eddington, 23 Mich.App.
210, 178 N.W.2d 686 (1970), aff'd, 387 Mich. 551, 198 N.W.2d
297 (1972) (only probable cause to arrest needed to enter
suspect's home if there is a reasonable belief that he is there). Compare England v. State, 488
P.2d 1347 (Okla.Crim.1971) (search warrant needed to enter
residence of third party to arrest suspect), with United States
v. Brown, 151 U.S.App.D.C. 365, 369, 467 F.2d 419, 423 (1972)
(only an arrest warrant, plus reasonable belief that the suspect is
present, necessary to support entry onto third party's
premises).

															MR. JUSTICE STEWART, concurring in the result.

															The arrest in this case was made upon probable cause in a public
place in broad daylight. The Court holds that this arrest did not
violate the Fourth Amendment, and I agree. The Court does not
decide, nor could it decide in this case, whether or under what
circumstances an officer must obtain a warrant before he may
lawfully enter a private place to effect an arrest. See
Gerstein v. Pugh, 420 U. S. 103 , 420 U. S. 113 n. 13; Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S.
474 -481; Davis v. Mississippi, 394 U.
S. 721 , 394 U. S. 728 ; Jones v. United States, 357 U. S. 493 , 357 U. S.
499 -500.

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															By granting police broad powers to make warrantless arrests, the
Court today sharply reverses the course of our modern decisions
construing the Warrant Clause of the Fourth Amendment. The Court
turns next to the "consent to search" question last dealt with in Schneckloth Page 423 U. S. 434 v. Bustamonte, 412 U. S. 218 (1973). Without acknowledgment or analysis, the Court extends the
scope of that decision to the situation expressly reserved in Schneckloth, and creates a rule inconsistent with Schneckloth's own analysis. The Court takes both steps
with a remarkable lack of consideration of either the facts of this
case or the constitutional questions it is deciding. That is
unfortunate not only because, in my view, the Court decides the
constitutional questions wrongly, but also because consideration
would have shown that the first question decided today is not
raised by the facts before us, and that the second question should
not be resolved here, given the present posture of this case. I
respectfully dissent. I Before addressing what the Court does today, I note what it does
not do. It does not decide this case on the narrow question that is
presented. That is unfortunate, for this is, fundamentally, a
simple case.

															On the afternoon of August 23, 1972, Awad Khoury, an informant
of proved reliability, met with respondent Watson at a public
restaurant under the surveillance of two postal inspectors. Khoury
was under instructions to light a cigarette as a signal to the
watching agents if Watson was in possession of stolen credit cards.
Khoury lit a cigarette, and the postal inspectors moved in, made
the arrest, and, ultimately, discovered under the floor mat of
Watson's automobile the stolen credit cards that formed the basis
of Watson's conviction and this appeal.

															The signal of the reliable informant that Watson was in
possession of stolen credit cards gave the postal inspectors
probable cause to make the arrest. This probable cause was separate
and distinct from the probable cause relating to the offense six
days earlier, and provided an Page 423 U. S. 435 adequate independent basis for the arrest. Whether or not a
warrant ordinarily is required prior to making an arrest, no
warrant is required when exigent circumstances are present. When
law enforcement officers have probable cause to believe that an
offense is taking place in their presence and that the suspect is
at that moment in possession of the evidence, exigent circumstances
exist. Delay could cause the escape of the suspect or the
destruction of the evidence. Accordingly, Watson's warrantless
arrest was valid under the recognized exigent circumstances
exception to the warrant requirement, and the Court has no occasion
to consider whether a warrant would otherwise be necessary.
[ Footnote 3/1 ]

															This conclusion should properly dispose of the case before us.
As the Court observes, ante at 423 U. S. 414 ,
the Court of Appeals relied heavily on the supposed illegality of
Watson's arrest in ruling that his consent to the search of his car
was coerced. Neither the opinion of the Court of Appeals nor the
briefs of the parties here address the remaining issue of the
circumstances under which consent to search given by a suspect lawfully in custody may be deemed coerced. Since that
issue is both complex and Page 423 U. S. 436 expressly reserved in Schneckloth v. Bustamonte, supra, I think it inappropriate for resolution without the benefit of the
views of the parties and the Court of Appeals. Accordingly, I would
reverse the Court of Appeals on the legality of the arrest, vacate
its judgment, and remand the case to that court for further
proceedings. II Since, for reasons it leaves unexpressed, the Court does not
take this traditional course, I am constrained to express my views
on the issues it unnecessarily decides. The Court reaches its
conclusion that a warrant is not necessary for a police officer to
make an arrest in a public place, so long as he has probable cause
to believe a felony has been committed, on the basis of its views
of precedent and history. As my Brother POWELL correctly observes, ante at 423 U. S.
426 -427, n. l (concurring), the precedent is spurious.
None of the cases cited by the Court squarely confronted the issue
decided today. Moreover, an examination of the history relied on by
the Court shows that it does not support the conclusion laid upon
it. After showing why, in my view, the Court's rationale does not
support today's result, I shall examine the relevant decisions and
suggest what I believe to be the proper rule for arrests.

															The Fourth Amendment provides:

															"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and 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."

															There is no doubt that, by the reference to the seizure of
persons, the Fourth Amendment was intended to Page 423 U. S. 437 apply to arrests. Ex parte
Burford , 3 Cranch 448 (1806). v See
generally N. Lasson, The History and Development of the Fourth
Amendment to the United States Constitution 79-82 (1937). Indeed,
we have often considered whether arrests were made in conformity
with the Fourth Amendment. E.g., Beck v. Ohio, 379 U. S. 89 (1964); Ker v. California, 374 U. S.
23 (1963); Draper v. United States, 358 U. S. 307 (1959); Giordenello v. United States, 357 U.
S. 480 (1958). Admittedly, as the Court observes, some
of our decisions make passing reference to the common law rule on
arrests. E.g., Carroll v. United States, 267 U.
S. 132 , 267 U. S. 156 (1925); Bad Elk v. United States, 177 U.
S. 529 , 177 U. S. 534 (1900); Kurtz v. Moffitt, 115 U.
S. 487 , 115 U. S.
498 -499 (1885). However, none of the cases cited by the
Court, nor any other warrantless arrest case in this Court,
mandates the decision announced today. Frequently exigent
circumstances were present, so that the warrantless arrest was
proper even if a warrant ordinarily may be required. Ker v.
California, supra; Draper v. United States, supra; United States v.
Di Re, 332 U. S. 581 (1948). Many cases have invalidated arrests as not based on
probable cause, thereby bypassing the need to reach the warrant
question. E.g., Beck v. Ohio, supra; Henry v. United
States, 361 U. S. 98 (1959). Elsewhere the Court has simply assumed the propriety of the
arrest and resolved the case before it on other grounds. Chimel
v. California, 395 U. S. 752 (1969). Cf. Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S. 476 (1971). And in other cases, the Court noted, but did not reach, the
warrantless arrest issue, e.g., Giordenello v. United States,
supra. In sum, as the case-by-case analysis undertaken by my
Brother POWELL demonstrates, the dicta relied upon by the Court in
support of its decision today are just that -- dicta. See
ante at 423 U. S.
426 -427, n. 1 (concurring). They are no substitute Page 423 U. S. 438 for reasoned analysis of the relationship between the warrant
requirement and the law of arrest.

															The Court next turns to history. It relies on the English common
law rule of arrest and the many state and federal statutes
following it. There are two serious flaws in this approach. First,
as a matter of factual analysis, the substance of the ancient
common law rule provides no support for the far-reaching modern
rule that the Court fashions on its model. Second, as a matter of
doctrine, the longstanding existence of a Government practice does
not immunize the practice from scrutiny under the mandate of our
Constitution.

															The common law rule was indeed as the Court states it:

															"[A] peace officer was permitted to arrest without a warrant for
a misdemeanor or felony committed in his presence as well as for a
felony not committed in his presence if there was reasonable ground
for making the arrest." Ante at 423 U. S. 418 ,
and sources cited. See also Kurtz v. Mott, supra; Bad Elk v.
United States, supra. To apply the rule blindly today,
however, makes as much sense as attempting to interpret Hamlet's
admonition to Ophelia, "Get thee to a nunnery, go" [ Footnote 3/2 ] without understanding the meaning of
Hamlet's words in the context of their age. [ Footnote 3/3 ] For the fact is that a felony at common
law and a felony today bear only slight resemblance, with the
result that the relevance of the common law rule of arrest to the
modern interpretation of our Constitution is minimal.

															Both at common law and today, felonies find definition in the
penal consequences of crime, rather than the Page 423 U. S. 439 nature of the crime itself. At common law, as this Court has
several times recognized,

															"No crime was considered a felony which did not occasion a total
forfeiture of the offender's lands, or goods, or both." Kurtz v. Moffitt, 115 U.S. at 115 U. S. 499 . See also Ex parte Wilson, 114 U.
S. 417 , 114 U. S. 423 (1885); 4 W. Blackstone, Commentaries *95. [ Footnote 3/4 ] At present, on the other hand,

															"Any offense punishable by death or imprisonment for a term
exceeding one year is a felony."

															18 U.S.C. § 1(1). [ Footnote 3/5 ]
This difference reflects more than changing notions of penology. It
reflects a substantive change in the kinds of crimes called
felonies. Carroll v. United States, 267 U.S. at 267 U. S. 158 .
[ Footnote 3/6 ] Only the most
serious crimes were felonies at common law, and many crimes now
classified Page 423 U. S. 440 as felonies under federal or state law were treated as
misdemeanors. Professor Wilgus has summarized and documented the
cases:

															"At common law, an assault was a misdemeanor, and it was still
only such even if made with the intent to rob, murder, or rape.
Affrays, abortion, barratry, bribing voters, challenging to fight,
compounding felonies, cheating by false weights or measures,
escaping from lawful arrest, eavesdropping, forgery, false
imprisonment, forcible and violent entry, forestalling, kidnapping,
libel, mayhem, maliciously killing valuable animals, obstructing
justice, public nuisance, perjury, riots and routs, etc. were
misdemeanors. . . ."

															Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 572-573
(1924) (footnotes omitted). See also 9 Halsbury's Laws of
England 45793 (1909). [ Footnote
3/7 ] To make an arrest for any of these crimes at common law,
the police officer was required to obtain a warrant, unless the
crime was committed in his presence. [ Footnote 3/8 ] Since many of these same crimes are
commonly classified as felonies today, [ Footnote 3/9 ] however, under the Court's holding, a Page 423 U. S. 441 warrant is no longer needed to make such arrests, a result in
contravention of the common law.

															Thus, the lesson of the common law, and those courts in this
country that have accepted its rule, is an ambiguous one. Applied
in it original context, the common law rule would allow the
warrantless arrest of some, but not all, of those we call felons
today. Accordingly, the Court is simply historically wrong when it
tells us that

															"[t]he balance struck by the common law in generally authorizing
felony arrests on probable cause, but without a warrant, has
survived substantially intact." Ante at 423 U. S. 421 .
As a matter of substance, the balance struck by the Page 423 U. S. 442 common law in accommodating the public need for the most certain
and immediate arrest of criminal suspects with the requirement of
magisterial oversight to protect against mistaken insults to
privacy decreed that only in the most serious of cases could the
warrant be dispensed with. This balance is not recognized when the
common law rule is unthinkingly transposed to our present
classifications of criminal offenses. Indeed, the only clear lesson
of history is contrary to the one the Court draws: the common law
considered the arrest warrant far more important than today's
decision leaves it.

															I do not mean by this that a modern warrant requirement should
apply only to arrests precisely analogous to common law
misdemeanors, and be inapplicable to analogues of common law
felonies. Rather, the point is simply that the Court's unblinking
literalism cannot replace analysis of the constitutional interests
involved. While we can learn from the common law, the ancient rule
does not provide a simple answer directly transferable to our
system. Thus, in considering the applicability of the common law
rule to our present constitutional scheme, we must consider both of
the rule's two opposing constructs: the presumption favoring
warrants, as well as the exception allowing immediate arrests of
the most dangerous criminals. The Court's failure to do so, indeed
its failure to recognize any tension in the common law rule at all,
drains all validity from its historical analysis.

															Lastly, the Court relies on the numerous state and federal
statutes codifying the common law rule. But this, too, is no
substitute for reasoned analysis. True enough, the national and
state legislatures have steadily ratified the drift of the balance
struck by the common law rule past the bounds of its original
intent. And it is true as well, as the Court observes, that a
presumption of constitutionality attaches to every Act of Congress.
But neither observation is determinative of the constitutional
issue, Page 423 U. S. 443 and the doctrine of deference that the Court invokes is contrary
to the principles of constitutional analysis practiced since Marbury v.
Madison , 1 Cranch 137 (1803). The Court's error on
this score is far more dangerous than its misreading of history,
for it is well settled that the mere existence of statutes or
practice, even of long standing, is no defense to an
unconstitutional practice.

															"[N]o one acquires a vested or protected right in violation of
the Constitution by long use, even when that span of time covers
our entire national existence and indeed predates it." Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 678 (1970). See also Almeida-Sanchez v. United States, 413 U. S. 266 (1973); Roe v. Wade, 410 U. S. 113 (1973); Furman v. Georgia, 408 U.
S. 238 (1972); Reynolds v. Sims, 377 U.
S. 533 (1964). [ Footnote
3/10 ] Our function in constitutional cases is weightier than
the Court today suggests: where reasoned analysis shows a practice
to be constitutionally deficient, our obligation is to the
Constitution, not the Congress.

															In sum, the Court's opinion is without foundation. It relies on
precedents that are not precedents. It relies on history that
offers no clear rule to impose, but only conflicting interests to
balance. It relies on statutes that constitute, at best, no more
than an aid to construction. The Court never grapples with the
warrant requirement of the Fourth Amendment and the cases
construing it. It simply announces, by ipse dixit, a rule
squarely rejecting the warrant requirement we have favored for so
long. III My Brother POWELL concludes:

															"Logic . . . would seem to dictate that arrests be subject to
the warrant Page 423 U. S. 444 requirement at least to the same extent as searches." Ante at 423 U.S.
429 (concurring). I agree.

															One of the few absolutes of our law is the requirement that,
absent the presence of one of a few "jealously and carefully drawn"
exceptions, Jones v. United States, 357 U.
S. 493 , 357 U. S. 499 (1958), a warrant be obtained prior to any search. [ Footnote 3/11 ]

															"[E]xcept in certain carefully defined classes of cases, a
search of private property without proper consent is 'unreasonable'
[within the meaning of the Fourth Amendment] unless it has been
authorized by a valid search warrant." Camara v. Municipal Court, 387 U.
S. 523 , 387 U. S.
528 -529 (1967). See Cady v. Dombrowski, 413 U. S. 433 , 413 U. S. 439 (1973); United States v. United States District Court, 407 U. S. 297 , 407 U. S.
315 -316, 318 (1972); Coolidge v. New Hampshire, 403 U.S. at 403 U. S.
454 -455; Chimel v. California, 395 U.S. at 395 U. S. 762 ; Terry v. Ohio, 392 U. S. 1 (1968); Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967).

															The rule the Court announces today for arrests is the reverse of
this approach. It is, in essence, the Rabinowitz rule: "The relevant test is not whether it is reasonable to procure [an
arrest] warrant, but whether the [arrest] was reasonable." United States v. Rabinowitz, 339 U. S.
56 , 339 U. S. 66 (1950). In the search context, Rabinowitz has been
overruled, Chimel v. California, supra at 395 U. S.
764 -768, and thoroughly discredited, see, e.g.,
United States v. United States District Court, supra at 407 U. S. 315 ,
and n. 16. The Rabinowitz approach simply does not provide
adequate protection for the important personal privacy interests
codified in the Page 423 U. S. 445 Fourth Amendment. Given "[t]he history of the use, and not
infrequent abuse, of the power to arrest," Wong Sun v. United
States, 371 U. S. 471 , 371 U. S. 479 (163), and the fact that arrests are, in terms, as fully governed
by the Fourth Amendment as searches, the logical presumption is
that arrests and searches should be treated equally under the
Fourth Amendment. Analysis of the interests involved confirms this
supposition.

															The Court has typically engaged in a two-part analysis in
deciding whether the presumption favoring a warrant should be given
effect in situations where a warrant has not previously been
clearly required. Utilizing that approach, we must now consider (1)
whether the privacy of our citizens will be better protected by
ordinarily requiring a warrant to be issued before they may be
arrested; and (2) whether a warrant requirement would unduly burden
legitimate governmental interests. United States v. United
States District Court, supra at 407 U. S. 315 ; Camara v. Municipal Court, supra at 387 U. S.
533 .

															The first question is easily answered. Of course, the privacy of
our citizens will be better protected by a warrant requirement. We
have recognized that "the Fourth Amendment protects people, not
places." Katz v. United States, supra at 389 U. S. 351 .
Indeed, the privacy guaranteed by the Fourth Amendment is
quintessentially personal. Cf. Roe v. Wade, supra; Doe v.
Bolton, 410 U. S. 179 (1973); Griswold v. Connecticut, 381 U.
S. 479 (1965). Thus, a warrant is required in search
situations not because of some high regard for property, but
because of our regard for the individual, and his interest in his
possessions and person.

															"It is not the breaking of his doors, and the rummaging of his
drawers, that constitutes the essence of the offense; but it is the
invasion of his indefeasible right of personal security, personal
liberty and Page 423 U. S. 446 private property, where that right has never been forfeited by
his conviction of some public offense, -- it is the invasion of
this sacred right which underlies and constitutes the essence of
Lord Camden's judgment [in the classic English warrant case of Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807
(1765)]." Boyd v. United States, 116 U.
S. 616 , 116 U. S. 630 (1886).

															Not only is the Fourth Amendment directly addressed to the
privacy of our citizens, but it speaks in indistinguishable terms
about the freedom of both persons and property from unreasonable
seizures. A warrant is required in the search situation to protect
the privacy of the individual, but there can be no less invasion of
privacy when the individual himself, rather than his property, is
searched and seized. Indeed, an unjustified arrest that forces the
individual temporarily to forfeit his right to control his person
and movements and interrupts the course of his daily business may
be more intrusive than an unjustified search.

															"Being arrested and held by the police, even if for a few hours,
is, for most persons, awesome and frightening. Unlike other
occasions on which one may be authoritatively required to be
somewhere or do something, an arrest abruptly subjects a person to
constraint, and removes him to unfamiliar and threatening
surroundings. Moreover, this exercise of control over the person
depends not just on his willingness to comply with an impersonal
directive, such as a summons or subpoena, but on an order which a
policeman issues on the spot and stands ready then and there to
back up with force. The security of the individual requires that so
abrupt and intrusive an authority be granted to public officials
only on a guarded basis."

															ALI, Model Code Page 423 U. S. 447 of Pre-arraignment Procedure, Commentary 290-291 (1975).

															A warrant requirement for arrests would, of course, minimize the
possibility that such an intrusion into the individual's sacred
sphere of personal privacy would occur on less than probable cause.
Primarily for this reason, a warrant is required for searches.
Surely there is no reason to place greater trust in the partisan
assessment of a police officer that there is probable cause for an
arrest than in his determination that probable cause exists for a
search. [ Footnote 3/12 ] Last Term
the Court unanimously recognized Page 423 U. S. 448 that detention of a person cannot be prolonged without judicial
oversight of the probable cause determination. Gerstein v.
Pugh, 420 U. S. 103 (1975). But while Gerstein may provide the best protection
possible against less than probable cause warrantless arrests based
on exigent circumstances, it does not fully protect the Fourth
Amendment rights at stake here. A less than probable cause arrest
followed by a Gerstein release is as offensive to the
Fourth Amendment as a less than probable cause search that fails to
uncover the evidence sought, and the requirement of a warrant is as
instrumental in protecting against the one as the other. Indeed,
the Court's opinion in Gerstein expressly recognizes that
maximum protection of individual rights can only be realized "by
requiring a magistrate's review of the factual justification prior
to any arrest. . . ." Id. at 420 U. S. 113 .
We come then to the second part of the warrant test: whether a
warrant requirement would unduly burden legitimate law enforcement
interests. Dicta in Gerstein answer this question in the
affirmative, and these concerns are somewhat amplified in the
concurrence of my Brother POWELL. Ante at 423 U. S.
431 -432. I believe, however, that the suggested concerns
are wholly illusory. Indeed, the argument that a warrant
requirement for arrests would be an onerous chore for the police
seems somewhat anomalous in light of the Government's concession
that

															"it is the standard practice of the Federal Bureau of
Investigation [FBI] to present its evidence to the United States
Attorney, and to obtain a warrant, before making an arrest."

															Brief for United States 26 n. 15. In the past, the practice and
experience of the FBI have been taken as a substantial indication
that no intolerable burden would be presented by a proposed rule of
procedure. Miranda v. Arizona, 384 U.
S. 436 , 384 U. S.
483 -486 (1966). Page 423 U. S. 449 There is no reason to accord less deference to the FBI practice
here. [ Footnote 3/13 ]

															The Government's assertion that a warrant requirement would
impose an intolerable burden stems, in large part, from the
specious supposition that procurement of an arrest warrant would be
necessary as soon as probable cause ripens. Brief for United States
22-24. There is no requirement that a search warrant be obtained
the moment police have probable cause to search. The rule is only
that present probable cause be shown and a warrant obtained before
a search is undertaken. [ Footnote
3/14 ] Fed.Rule Crim.Proc. 41. Cf. Berger v. New York, 388 U. S. 41 , 388 U. S. 59 (1967). The same rule should obtain for arrest warrants, where it
may even make more sense. Certainly, there is less need for prompt
procurement of a warrant in the arrest situation. Unlike probable
cause to search, probable cause to arrest, once formed, will
continue to exist for the indefinite future, at least if no
intervening exculpatory facts come to light. See Wilson v.
United States, 117 U.S.App.D.C. 28, 325 F.2d 224 (1963), cert. denied, 377 U.S. 1005 (1964), and Page 423 U. S. 450 United States v. Wilson, 342 F.2d 782 (CA2 1965) (both
upholding delay of 16 months between formation of probable cause
and issuance of arrest warrant). Cf. Hoffa v. United
States, 385 U. S. 293 , 385 U. S. 310 (1966).

															This sensible approach obviates most of the difficulties that
have been suggested with an arrest warrant rule. Police would not
have to cut their investigation short the moment they obtain
probable cause to arrest, nor would undercover agents be forced
suddenly to terminate their work and forfeit their covers. Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d
850 (1966). Moreover, if in the course of the continued police
investigation exigent circumstances develop that demand an
immediate arrest, the arrest may be made without fear of
unconstitutionality, so long as the exigency was unanticipated and
not used to avoid the arrest warrant requirement. Cf. Coolidge
v. New Hampshire, 403 U.S. at 403 U. S.
469 -471 (evidence may be seized if in plain view only if
its discovery is inadvertent). Likewise, if in the course of the
continued investigation police uncover evidence tying the suspect
to another crime, they may immediately arrest him for that crime if
exigency demands it, and still be in full conformity with the
warrant rule. This is why the arrest in this case was not improper.
[ Footnote 3/15 ] Other than where
police attempt to evade the warrant requirement, the rule would
invalidate an arrest only in the obvious situation: where police,
with probable cause but without exigent circumstances, set out to
arrest a suspect. Such an arrest must be void, even if exigency
develops in the course of the arrest that Page 423 U. S. 451 would ordinarily validate it; otherwise the warrant requirement
would be reduced to a toothless prescription.

															In sum, the requirement that officers about to arrest a suspect
ordinarily obtain a warrant before they do so does not seem unduly
burdensome, at least no more burdensome than any other requirement
that law enforcement officials undertake a new procedure in order
to comply with the dictates of the Constitution. Cf. Gerstein
v. Pugh, 420 U. S. 103 (1975); United States v. Wade, 388 U.
S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); Miranda v. Arizona, supra; Gideon v. Wainwright, 372 U. S. 335 (1963).

															It is suggested, however, that, even if application of this rule
does not require police to secure a warrant as soon as they obtain
probable cause, the confused officer would nonetheless be prone to
do so. If so, police "would risk a court decision that the warrant
had grown stale by the time it was used." Ante at 423 U. S. 432 (POWELL, J., concurring) (footnote omitted). This fear is
groundless. First, as suggested above, the requirement that police
procure a warrant before an arrest is made is rather simple of
application. Thus, there is no need for the police to find
themselves in this "squeeze." Second, the "squeeze" is nonexistent.
Just as it is virtually impossible for probable cause for an arrest
to grow stale between the time of formation and the time a warrant
is procured, it is virtually impossible for probable cause to
become stale between procurement and arrest. [ Footnote 3/16 ] Delay by law enforcement officers
in executing an arrest warrant does not ordinarily affect the
legality of the arrest. [ Footnote
3/17 ] Page 423 U. S. 452 United States v. Wilson, supra; Wilson v. United States,
supra; Carlo v. United States, 286 F.2d 841, 846 (CA2), cert. denied, 366 U.S. 944 (1961); United States v.
Joines, 258 F.2d 471 (CA3), cert. denied, 358 U.S.
880 (1958); Giordenello v. United States, 241 F.2d 575
(CA5 1957), rev'd on other grounds, 357 U.
S. 480 (1958). In short, staleness should be the least
of an arresting officer's worries. [ Footnote 3/18 ]

															Thus, the practical reasons marshaled against an arrest warrant
requirement are unimpressive. [ Footnote 3/19 ] If anything, the virtual nonexistence of
a staleness problem suggests that such a requirement would be less
burdensome for police than the search warrant rule. And given the
significant protection our citizens will gain from a warrant
requirement, accepted Fourth Amendment Page 423 U. S. 453 analysis dictates that a warrant rule be imposed. This
conclusion, then, answers the questions posed by analysis of the
common law rule on arrest; in choosing between the common law's
prescription that a warrant ordinarily be obtained for the arrest
of persons suspected of committing less serious crimes and the
common law exception allowing warrantless arrests of suspects in
more serious offenses, the intervention of our Fourth Amendment and
the cases developing its application necessarily favor the former
approach. Thus, I believe the proper result is application of the
warrant requirement, as it has developed in the search context, to
all arrests. IV Accordingly, I dissent from the Court's contrary holding. It is
always disheartening when the Court ignores a relevant body of
precedent and eschews any considered analysis. It is more so when
the result of such an approach is a rule that "leave[s] law-abiding
citizens at the mercy of the officers' whim or caprice," Brinegar v. United States, 338 U.
S. 160 , 338 U. S. 176 (1949), and renders the constitutional protection of our "persons"
a nullity. The consequences of the Court's casually adopted
rationale are clear.

															First, the opinion all but answers the question raised in Coolidge v. New Hampshire, 403 U.S. at 403 U. S.
480 -481, namely, "whether and under what circumstances
an officer may enter a suspect's home to make a warrantless
arrest." Gerstein v. Pugh, 420 U.S. at 420 U. S. 113 n. 13. [ Footnote 3/20 ] Page 423 U. S. 454 Admittedly, my Brothers STEWART and POWELL do not read the
opinion to resolve that issue, and, indeed, the Court purports to
leave it open. Ante at 423 U. S. 418 n. 6. But the mode of analysis utilized here -- reliance on the
common law and federal and state statutes -- provides a ready
answer, as indeed the Court hints by its extended discussion of §
120.6 of the ALI Model Code of Prearraignment Procedure and its
relevant commentary. Ante at 423 U. S. 418 n. 6. See also Wilgus, 22 Mich.L.Rev. at 800 ("For a
felony . . . one may break into the dwelling house to take the
felon . . ."); id. at 558, 803; 9 Halsbury's Laws of
England 307 (1909); 1 J. Chitty, Criminal Law *23; 4 W. Blackstone,
Commentaries *292. Unless the approach of this opinion is to be
fundamentally rejected, it will be difficult, if not impossible, to
follow these sources to any but one conclusion -- that entry to
effect a warrantless arrest is permissible.

															Second, by paying no attention whatever to the substance of the
offense, and considering only whether it is labeled "felony," the
Court, in the guise of "constitutionalizing" the common law rule,
actually does away with it altogether, replacing it with the rule
that the police may, consistent with the Constitution, arrest on
probable cause anyone who they believe has committed any sort of
crime at all. Certainly this rule would follow Page 423 U. S. 455 if the legislatures redenominated all crimes as "felonies." As a
matter of substance, it would seem to follow in any event from the
holding of this case, for the Court surely does not intend to
accord constitutional status to a distinction that can be readily
changed by legislative fiat. [ Footnote 3/21 ]

															Lastly, the Court surrenders the opportunity to put teeth in our
oft-expressed preference for the use of arrest warrants. Beck
v. Ohio, 379 U.S. at 379 U. S. 96 ; Wong Sun v. United States, 371 U.S. at 371 U. S.
479 -482. While some incentives for police to obtain
arrest warrants remain, [ Footnote
3/22 ] Page 423 U. S. 456 they are only indirect and have proved ineffective in the past
in assuring routine application for arrest warrants when the
circumstances permit it. By our holding today, the preference for
an arrest warrant, which the Court has conceded is the optimal
method to protect our citizens from the affront of an unlawful
arrest, will remain only an ideal, one that the Court will espouse
but not enforce. V Having disposed of the suggestion that the Fourth Amendment
requires a warrant of arrest before the police may seize our
persons, the Court turns its attention, briefly, to whether Watson
voluntarily consented to the search of his automobile. I have
suggested above that, because this issue is of some complexity and
has not been thoroughly briefed for us I would remand this case for
initial consideration of the question by the Court of Appeals. The
Court, however, finds the question simplicity itself. It applies
the "totality of the circumstances" test established in Schneckloth v. Bustamonte, 412 U.
S. 218 (1973), and treats the question as merely
requiring the application of settled law to the facts before
us.

															That is not the case. Watson was in custody when his consent was
obtained. The lack of custody was of decisional importance in Schneckloth, which repeatedly distinguished the case
before it from one involving a suspect in custody. Id. at 412 U. S. 232 , 412 U. S.
240 -241, and n. 29, 412 U. S.
246 -248, and n. 36. The Court held:

															"Our decision today is a narrow one. We hold only that, when
the subject of a search is not in custody and the State
attempts to justify a search on the basis of his consent, the
Fourth and Fourteenth Page 423 U. S. 457 Amendments require that it demonstrate that the consent was, in
fact, voluntarily given, and not the result of duress or coercion,
express or implied." Id. at 412 U. S. 248 (emphasis added). Not once, but twice, the question the Court today
treats as settled was expressly reserved:

															"[T]he present case does not require a determination of the
proper standard to be applied in assessing the validity of a search
authorized solely by an alleged consent that is obtained from a
person after he has been placed in custody." Id. at 412 U. S. 241 n. 2. See also id. at 412 U. S. 247 n. 36.

															I adhere to the views expressed in my dissent in Schneckloth, id. at 412 U. S. 277 ,
and therefore believe that the Government must always show that a
person who consented to a search did so knowing he had the right to
refuse. But even short of this position, there are valid reasons
for application of such a rule to consents procured from suspects
held in custody. It was, apparently, the force of those reasons
that prompted the Court in Schneckloth to reserve the
question. Most significantly, we have previously accorded
constitutional recognition to the distinction between custodial and
noncustodial police contacts. Miranda v. Arizona, 384 U.S.
at 384 U. S.
477 -478. Indeed, Schneckloth directly relied on Miranda's articulation of that distinction to reach its
conclusion. 412 U.S. at 412 U. S. 232 .
Thus, while custodial interrogation is inherently coercive, and any
consent thereby obtained necessarily suspect, Miranda (and Schneckloth ) expressly reject the notion that there is
anything inherently coercive about general noncustodial
interrogation. 384 U.S. at 384 U. S. 477 -478; 412 U.S. at 412 U. S. 247 .
For this reason it is entirely appropriate to place a substantially
greater burden on the Government Page 423 U. S. 458 to validate a consent obtained from a suspect following
custodial interrogation, however brief. Indeed, it is difficult, if
not impossible, to square a contra conclusion with Miranda. A substantially greater burden on the Government
means, quite obviously, that the fact of custody is not merely
another factor to be considered in the "totality of the
circumstances." [ Footnote 3/23 ]
And, in my view, it means that the Government must show that the
suspect knew he was not obligated to consent to the search.

															Whether after due consideration the Court would accept this view
or not, it is a surrender of our judicial task altogether to ignore
the question. And, equally disturbing, it is a distortion of our
precedent to pretend that what seemed a difficult and complex
problem three years ago is no problem at all today.

															I respectfully dissent.

															[ Footnote 3/1 ]

															The Court of Appeals did not recognize this independent probable
cause to arrest petitioner, perhaps because one of the arresting
officers testified that the arrest was made for the earlier, rather
than the contemporaneous, offense. App. 23-24. That testimony
should not limit the inquiry into contemporaneous probable cause.
Where the good faith of the arresting officers is not at issue, and
where the crime for which a suspect is arrested and that for which
the officers have probable cause are closely related, courts
typically use an objective, rather than subjective, measure of
probable cause. Ramirez v. Rodriguez, 467 F.2d 822 (CA10
1972); United States v. Martinez, 465 F.2d 79 (CA2 1972); United States v. Atkinson, 450 F.2d 835, 838 (CA5 1971).
Since the objective facts demonstrably show probable cause as to
the contemporaneous offense as well as the earlier offense,
Watson's arrest is properly justified by reference to those
facts.

															[ Footnote 3/2 ]

															W. Shakespeare, Hamlet, act iii, sc. 1, line 142.

															[ Footnote 3/3 ]

															Nunnery was Elizabethan slang for house of prostitution. 7
Oxford English Dictionary 264 (1933).

															[ Footnote 3/4 ]

															Professor Wilgus has defined felonies at common law as

															"those bootless crimes, prosecuted by an appeal with an offer of
trial by battle, the felon's lands to go to his lord or the king,
his chattels confiscated, and life and members forfeited, if
guilty, and if he fled, he became an outlaw. . . ."

															Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 569
(1924).

															[ Footnote 3/5 ]

															In the States, the most common rule is that any crime punishable
by death or imprisonment in the state prison is a felony. See
id. at 571. See also, e.g., Ark.Stat.Ann. § 41-103
(1964); 22 Fla.Stat.Ann. § 775.08 (Supp. 1975); Ill.Ann.Stat. § 2-7
(Supp. 1975); Ky.Rev.Stat.Ann. § 431.060 (1970); Mass.Gen.Laws
Ann., c. 274, § 1 (1970); Okla.Stat.Ann., Tit. 21, § 5 (1958);
Wash.Rev.Code § 9.01.020 (1974).

															[ Footnote 3/6 ]

															"In England at the common law the difference in punishment
between felonies and misdemeanors was very great. Under our present
federal statutes, it is much less important, and Congress may
exercise a relatively wide discretion in classing particular
offenses as felonies or misdemeanors." Carroll v. United States, 267 U.S. at 267 U. S.
158 .

															[ Footnote 3/7 ]

															Indeed, by statute, it was no more than a high misdemeanor
wilfully to discharge or attempt to discharge a pistol at or near
the King of England. 9 Halsbury's Laws of England 459 (1909). Cf. 18 U.S.C. § 871 (felony to make threats against
President of United States); §1751 (felony to assault President of
United States).

															[ Footnote 3/8 ]

															This exception was essentially a narrowly drawn exigent
circumstances exception. See Carroll v. United States,
supra, at 267 U. S.
157 .

															[ Footnote 3/9 ]

															For example, under federal law, these are some of the common law
misdemeanors, or their modern equivalents, now considered felonies:
assault, 18 U.S.C. §§111-112; assault with intent to commit murder,
rape or any other felony, §113; forging securities of the United
States, § 471; bribing voters, § 597; escape, § 751; kidnaping,
§1201; obstruction of congressional or executive investigations, §
1505; obstruction of criminal investigations, § 1510; perjury, §
1621; riots, § 2101; interception of wire or oral communications, §
2511. See also, e.g., Ark.Stat.Ann. § 41-606 (1964) (assault
with intent to kill); § 41-607 (assault with intent to rape); §
41-1805 (forgery); § 41-3005 (perjury); § 41-2308 (Supp. 1973)
(kidnaping).

															Fla.Stat.Ann. § 787.02 (Supp. 1975) (false imprisonment); §
831.01 (Supp. 1975) (forgery); § 837.012 (Supp. 1975) (perjury); §
843.14 (Supp. 1975) (compounding felonies); § 870.03 (Supp. 1975)
(riots and routs).

															Ill.Ann.Stat. § 10-1 (Supp. 1975) (kidnaping); § 14-4
(eavesdropping); § 33-1 (Supp. 1975) (bribery); § 32-2 (Supp. 1975)
(perjury).

															Ky.Rev.Stat. § 520.020 (1975) (escape); § 516.020 (1975)
(forgery); § 509.020 (1975) (kidnaping); § 515.020 (1975) (assault
with intent to rob); § 523.020 (1975) (perjury).

															Mass.Gen.Laws Ann., c. 265, § 29 (1970) (assault with intent to
commit a felony); c. 268, § 36 (compounding felonies); c. 268, §
13B (obstructing justice); c. 267, § 1 (Supp. 1975) (forgery); c.
272, § 99 (interception of wire and oral communications); c. 268, §
16 (Supp. 1975) (escape); c. 265, § 26 (Supp. 1975)
(kidnaping).

															Okla.Stat.Ann., Tit. 21, § 443 (Supp. 1975) (escape); § 499
(1958) (perjury); § 653 (Supp. 1975) (assault with intent to kill);
§ 1312 (1958) (riot); § 1621 (1958) (forgery).

															Wash.Rev.Code § 9.11.010 (1974) (assault with intent to commit a
felony); § 9.27.050 (riot); § 9.31.010 (escape); § 9.44.020
(forgery); § 9.52.010 (kidnaping); § 9.72.010 (perjury).

															[ Footnote 3/10 ]

															"It is clear, of course, that no Act of Congress can authorize a
violation of the Constitution." Almeida-Sanchez v. United
States, 413 U.S. at 413 U. S.
272 .

															[ Footnote 3/11 ]

															"[S]earches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well delineated exceptions." Katz v. United States, 389 U.
S. 347 , 389 U. S. 357 (1967).

															[ Footnote 3/12 ]

															In fact, the reasons relating to personal privacy so often
itemized by the Court in requiring a warrant to search appear to
apply with equal force to arrests. In Johnson v. United
States, 333 U. S. 10 (1948), Mr. Justice Jackson laid down the reasons for a search
warrant in these classic lines:

															"The point of the Fourth Amendment which often is not grasped by
zealous officers is not that it denies law enforcement the support
of the usual inferences which reasonable men draw from evidence.
Its protection consists in requiring that those inferences be drawn
by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting
out crime. Any assumption that evidence sufficient to support a
magistrate's disinterested determination to issue a search warrant
will justify the officers in making a search without a warrant
would reduce the Amendment to a nullity, and leave the people's
homes secure only in the discretion of police officers. Crime, even
in the privacy of one's own quarters, is, of course, of grave
concern to society, and the law allows such crime to be reached on
proper showing. The right of officers to thrust themselves into a
home is also a grave concern not only to the individual, but to a
society which chooses to dwell in reasonable security and freedom
from surveillance. When the right of privacy must reasonably yield
to the right of search is, as a rule, to be decided by a judicial
officer, not by a policeman or government enforcement agent." Id. at 333 U. S. 13 -14.
Substitute "arrest" for "search" and replace references to the home
with references to the person, and the justification for an arrest
warrant compellingly emerges.

															[ Footnote 3/13 ]

															The Miranda Court rejected as irrelevant the argument
that the FBI deals with crimes different from those dealt with by
state authorities. 384 U.S. at 384 U. S.
486 .

															[ Footnote 3/14 ]

															The police will, however, encounter problems of "staleness" of
their information if they delay too long in seeking a search
warrant. E.g., Sgro v. United States, 287 U.
S. 206 (1932); United States v.
Sawyer, 213 F. Supp.
38 , 40 (ED Pa.1963). See generally Annot., 100
A.L.R.2d 525 (1965). But see People v. Wright, 367 Mich.
611, 116 N.W.2d
786 (1962). This problem relates, however, to the existence at
the time the warrant is applied for of probable cause to believe
the object to be seized remains where it was, not to whether the
earlier probable cause mandated immediate application for a
warrant. Mascolo, The Staleness of Probable Cause in Affidavits for
Search Warrants: Resolving the Issue of Timeliness, 43 Conn.B.J.
189 (1969). This problem has no bearing, of course, in connection
with a warrant to arrest.

															[ Footnote 3/15 ]

															Although the postal inspectors here anticipated the occurrence
of the second crime, they could not have obtained a warrant for
Watson's arrest for that crime until probable cause formed, just
moments before the arrest. A warrant based on anticipated facts is
premature and void. United States v.
Roberts, 333 F.
Supp. 786 (ED Tenn 1971).

															[ Footnote 3/16 ]

															Thus, unlike a search warrant, an arrest warrant typically does
not require execution within a specified time period or
"forthwith." Compare Fed.Rule Crim.Proc. 41(c) with Rules 4 and 9.

															[ Footnote 3/17 ]

															Pre-arrest delay may violate a defendant's due process rights
and cause dismissal of the charges if the delay is such as to
impair the defendant's ability to defend himself or is deliberate
and unjustified. United States v. Feinberg, 383 F.2d 60,
65 (CA2 1967), cert. denied, 389 U.S. 1044 (1968); United States v. Harbin, 377 F.2d 78 (CA4 1967); Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d
850 (1966); Powell v. United States, 122 U.S.App.D.C. 229,
231, 352 F.2d 705, 707 (1966). The effect of such delay, however,
is completely unrelated to the warrant question.

															[ Footnote 3/18 ]

															It is suggested that staleness would be most serious in
situations where the original probable cause justifying a warrant
is undercut by exculpatory evidence, only to be reaffirmed by
further inculpatory evidence. Why this should be a problem baffles
me. It should be obvious that when the probable cause supporting a
warrant no longer exists, the warrant is void and the suspect
cannot be arrested. That probable cause is thereafter again found
only tells us that, absent exigency, a subsequent warrant should be
obtained, not that the void warrant should somehow be resurrected. Cf. Sgro v. United States, 287 U.
S. 206 (1932).

															[ Footnote 3/19 ]

															The fear that "endless litigation" will result from a warrant
rule cannot be credited as an additional practical reason against
such a rule. Cf. ante at 423 U. S.
423 -424. Recognition of a constitutional right
inevitably results in litigation to enforce that right. We would
quickly lose all protection from our Constitution if it could
successfully be argued that its guarantees should be ignored
because if they were recognized our citizens would begin to assert
them.

															[ Footnote 3/20 ]

															The Court of Appeals relied on language from Coolidge v. New
Hampshire to support its conclusion that a warrant was
required to arrest Watson:

															"Indeed, if MR. JUSTICE WHITE is correct that it has generally
been assumed that the Fourth Amendment is not violated by the
warrantless entry of a man's house for purposes of arrest, it might
be wise to reexamine the assumption. . . ."

															". . . The case of Warden v. Hayden , [ 387 U.S.
294 (1967),] where the Court elaborated a 'hot pursuit'
justification for the police entry into the defendant's house
without a warrant for his arrest, certainly stands by negative
implication for the proposition that an arrest warrant is required
in the absence of exigent circumstances."

															403 U.S. at 403 U. S.
480 -481. The Court is correct that this language relates
only to the question reserved both in Gerstein v. Pugh, 420 U.S. at 420 U. S. 113 n. 13, and in this case.

															[ Footnote 3/21 ]

															Thus the Court calls into question the line of state cases
holding unconstitutional statutes authorizing warrantless arrests
for misdemeanors not committed in the presence of the arresting
officer. In re Kellam, 55 Kan. 700, 41 P. 960 (1895); Robison v. Miner, 68 Mich. 549, 37 N.W. 21 (1888); Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579 (1889); Gunderson v. Struebing, 125 Wis. 173, 104 N.W. 149 (1905); Ex parte Rhodes, 79 So. 462 (Ala.1918). Of course, such a
result (or, indeed, the result I espouse herein) may still be
sustained under the pertinent provisions of the state constitution. Cf. Oregon v. Hass, 420 U. S. 714 , 420 U. S. 726 (1975) (MARSHALL, J., dissenting).

															[ Footnote 3/22 ]

															After today, there are two primary incentives for the police to
obtain an arrest warrant. First, the Court has suggested, but never
held, that a stronger showing of probable cause may be needed to
justify a warrantless arrest than would be required if a warrant
had been obtained. Wong Sun v. United States, 371 U.
S. 471 , 371 U. S.
479 -480 (1963). Cf. United States v. Ventresca, 380 U. S. 102 , 380 U. S. 106 (1965) (searches). This two-tier standard of probable cause may
prove too slippery for ready application, however, especially given
the already imprecise definition of probable cause itself, Carroll v. United States, 267 U.S. at 267 U. S. 161 .
What the Court intends, I suspect, is simply that the evidence of
probable cause supporting a warrantless arrest will be subjected to
closer scrutiny than that, underlying a warrant supported
arrest.

															The second incentive for police to obtain a warrant is that they
may desire to present their evidence to a magistrate so as to be
sure that they have probable cause. If probable cause is lacking,
the police will then have an opportunity to gather more evidence
rather than make an illegal arrest that would result in suppression
of any evidence seized.

															[ Footnote 3/23 ]

															Many Courts of Appeals have recognized that a custodial consent
is different in kind from one obtained from a person not in
custody, and have placed a stiff burden on the Government to
validate the consent. United States v. Rothman, 492 F.2d
1260, 1265 (CA9 1973); United States v. Nikrasch, 367 F.2d
740, 744 (CA7 1966); Judd v. United States, 89
U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951).

Summary: The Supreme Court ruled that the arrest of the respondent, based on probable cause and made by postal officers following the governing statute and regulations, did not violate the Fourth Amendment. The respondent's consent to the car search was not the result of an illegal arrest, and there were no circumstances suggesting that the consent was coerced or invalid. The Court reversed the Court of Appeals' decision and held that the evidence obtained from the car search was admissible.