UNITED STATES v. SHARPE
Legal provision: Amendment 4: Fourth Amendment
ORAL ARGUMENT OF ANDREW L. FREY, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: We will hear arguments first this morning in United States against Sharpe.
Mr. Frey, you may proceed whenever you are ready.
Andrew L. Frey: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on the government's petition for writ of certiorari to review a judgment of the United States Court of Appeals for the Fourth Circuit suppressing a truckload of marijuana seized from the respondents on the ground that the discovery of the marijuana was the fruit of an unduly prolonged detention.
Unidentified Justice: Was it really a whole truckload?
Andrew L. Frey: Well, it was a... this was a pickup truck with a camper shell.
It was 43 bales of marijuana weighing, I think, about 2,600 pounds.
That is a fair quantity.
Unidentified Justice: That is quite a bit, yes.
Andrew L. Frey: The case began when there was an operation to investigate suspected smuggling, marijuana smuggling in the... it was believed to be occurring either in the northernmost coastal county of South Carolina or the southernmost coastal county of North Carolina.
And the main actor on the law enforcement side was DEA Agent Cooke, who was patrolling the highways near the beaches where the marijuana activity was suspected to be occurring, and he saw the pickup truck with camper shell, which turned out to be driven by respondent Savage, proceeding in tandem with a Pontiac automobile, which turned out to be driven by respondent Sharpe.
Being suspicious of these vehicles, he followed them for some 20 miles as they proceeded south and observed certain things about them which to his mind confirmed his suspicion that they might be engaged in marijuana smuggling.
He determined at that point that he might like to make a stop, and he radioed for assistance, and Patrolman Thrasher of the South Carolina State Police joined this procession of vehicles as it proceeded toward Myrtle Beach, and shortly after Thrasher joined the procession, the pickup truck and the car made a turn onto a camp road, sped along that road well in excess of the speed limit.
The road made a loop and returned to the main highway.
They were followed all this time by Agent Cooke and Patrolman Thrasher.
They turned back on the main highway headed south.
At that point it was decided by Agent Cooke that they should be stopped for investigation.
He asked Thrasher to signal them to halt.
Thrasher did so.
When he did so, the Pontiac automobile driven by Sharpe pulled over to the side.
The truck driven by respondent Savage sped off in between the patrolman's car and the Pontiac down the road.
At this point, Patrolman Thrasher followed the truck down the road and Agent Cooke stopped with the Pontiac.
He asked Sharpe for identification.
Sharpe produced a license in the name of Raymond J. Pavlovich.
Cooke made some further efforts to communicate with Thrasher which were initially unsuccessful.
At the same time, he called for backup units from the Myrtle Beach Police to come and hold Sharpe and his passenger while he went on to see if he could locate the truck.
He went down the road, caught up half a mile down the road with Patrolman Thrasher and the truck, and in the meanwhile, to come back to that stopping, Thrasher had pursued the truck, stopped it half a mile down the road.
Savage had been ordered out of the vehicle or had been coming out of the vehicle.
It is not quite clear.
He was frisked.
He was then asked for license and registration.
He produced a bill of sale in the name also of Raymond J. Pavlovich, and at that point he was simply held by Agent Thrasher... by Officer Thrasher until Agent Cooke appeared on the scene.
Unidentified Justice: Mr. Frey, did he ask if he could leave?
Andrew L. Frey: He did ask if he could leave.
There is no question--
Unidentified Justice: Why wasn't he allowed to?
Andrew L. Frey: --He wasn't allowed to leave because there was a reasonable suspicion that the truck contained marijuana.
Unidentified Justice: At that time?
Andrew L. Frey: At that time.
That was the basis for the stop.
The basis for the stop was Agent Cooke's suspicion of marijuana smuggling activity, which focused on the truck as--
Unidentified Justice: Tell me again, why wasn't he allowed to leave?
Andrew L. Frey: --He was not allowed to leave because Agent Thrasher had determined to hold him until Cooke arrived on the scene to conduct a--
Unidentified Justice: Any precedent of ours that justified that?
Andrew L. Frey: --Excuse me?
Unidentified Justice: Any precedent of ours that justified not letting him leave?
Andrew L. Frey: Well, I do intend to get into that.
I think there is precedent of yours in terms of analysis and language in opinions that clearly justifies that.
I don't think there is any holding that is directly on point.
Unidentified Justice: How long was he in fact held after he had--
Andrew L. Frey: Well, this detention was from the time he was stopped--
Unidentified Justice: --No, after he asked to leave.
Andrew L. Frey: --I think he was already being detained at the time he was pulled over to the side of the road, so to my mind the fact that he asked to leave is irrelevant.
He was already under... his person had already been seized within the meaning of the Fourth Amendment even before he asked to leave.
It is not clear when he asked to leave.
I am not certain when that is, but from the beginning initiation--
Unidentified Justice: You are not suggesting there was probable cause to detain him, are you?
Andrew L. Frey: --No.
No, our suggestion is that what there was in this case was a seizure at the time he was pulled over by Officer Thrasher, supported by reasonable suspicion, which extended for approximately, and the record is not totally clear, about 20 minutes until Agent Cooke arrived.
Unidentified Justice: And would it make any difference if it were an hour instead of 20 minutes?
Andrew L. Frey: Yes.
Unidentified Justice: What, if it were an hour?
That would be too long?
Andrew L. Frey: Well, we would have to know why it was an hour, but ordinarily--
Unidentified Justice: Well, the same reason.
The distance between the car and the truck was just greater, that's all, and it took an hour for Cooke to get there.
Andrew L. Frey: --Well, I think we would still defend that as being consistent with the Fourth Amendment.
Unidentified Justice: Two hours?
Andrew L. Frey: Well, I think there is clearly an outer limit, because you would have to ask yourself whether it is reasonable under the circumstances to take some other means.
The reason why the detention was extended in this case was quite clearly because Officer Thrasher didn't know... he was acting as agent for Cooke in making the stop.
He knew nothing about the investigation, what Cooke had observed, what the joint task force that was investigating the smuggling activity knew.
He didn't know really what questions to ask or what things to do.
Once Agent Cooke arrived on the scene, it was a matter of about five minutes for him to ask a couple of questions, seek and be denied consent to search the camper.
Unidentified Justice: Mr. Frey, could I ask at this point, is the analysis the same with respect to Mr. Sharpe as it is with respect to Mr. Savage?
He was back in a different location, wasn't he?
Andrew L. Frey: Well, I would say that as to respondent Sharpe, there is no... he might as well have been sitting at home in Kansas City in terms of the discovery of the evidence.
Unidentified Justice: Except that he was by the side of the road with an officer telling him he couldn't go any place.
That is not quite the same as being at home.
Andrew L. Frey: Well, it is possible, although we contend it is not true, that Sharpe was unlawfully detained.
However, the evidence in question in this case is the marijuana seized from Savage's camper.
Unidentified Justice: I understand.
Andrew L. Frey: And whether Sharpe had... Sharpe could have been arrested without probable cause.
He could have been--
Unidentified Justice: Your main position with respect to Sharpe is, he doesn't really have standing to object.
Andrew L. Frey: --It is that he doesn't have standing, but really standing and fruits are intertwined in this case.
That is that nothing was the product of the detention of Sharpe except for the discovery of the license which occurred immediately when--
Unidentified Justice: --Really what I am trying to ask, I am trying to follow up on what Justice Brennan asked you.
Is the timing any different?
Could you have held... you say you would get a point with respect to Savage when perhaps it would have been too long if they hadn't ripened into probable cause.
How long could they have detained Sharpe?
The same length of time?
Andrew L. Frey: --I think it would be essentially the same length of time that they could detain either of them.
The detention of Sharpe was longer from the time that he was--
Unidentified Justice: They could detain Sharpe because they had reasonable suspicion about Savage?
Andrew L. Frey: --And about Sharpe.
Unidentified Justice: That they might be connected.
Andrew L. Frey: Because Sharpe and Savage were clearly together.
So there are two separate questions.
One is whether Sharpe was unlawfully detained, and my point in this connection is that what you must focus on, because what is at issue is the admissibility of the marijuana seized from the camper, is only the detention from the time the camper was stopped until the time probable cause to believe it contained marijuana developed is the relevant period of time.
Now, for Mr. Sharpe, he was detained longer, but in our view, that detention was not unlawful, A, because it was justified by the circumstances, certainly the last ten minutes or so of it were after probable cause had already developed, and in any event, whether a lawful or unlawful, irrelevant to the admissibility of the marijuana.
Sharpe could have been detained for ten hours.
It had nothing to do with finding the marijuana.
Unidentified Justice: May I ask one other question about the... you mentioned in your description of the case that they apparently were speeding when they went in and out of the camp site or whatever, the pull-off part, and also that the camper in effect sort of sped away when he pulled the car over.
Andrew L. Frey: Yes.
Unidentified Justice: Do you rely on those two circumstances merely as buttressing your showing of probable smuggling activity, or do you rely on them in part as violations of law?
Andrew L. Frey: Well, with respect to the speeding, I rely on it only insofar as an issue which is not before the Court, which is the validity of the initial stop, which the Court of Appeals didn't pass on.
I think the initial stop would be justified by the speeding.
I do not rely on the extended detention on the basis of the speeding, because there is no evidence in the record that the speeding would have led to a custodial arrest or would ordinarily have led to an extended detention.
So, the extended detention we seek to justify only by the suspicion of marijuana smuggling.
Unidentified Justice: Mr. Frey, I want to ask about this point if I may.
You say we don't have to decide the question of whether there was reasonable suspicion to make the initial stop.
Is that right?
Andrew L. Frey: --I believe that's correct.
I think you could decide it.
Unidentified Justice: Would it be remanded for that purpose then, since the Court of Appeals didn't decide it?
Andrew L. Frey: Leaving aside the question of respondents' fugitivity, I would say that it would be within the discretion of this Court either to go ahead and decide it if it chose to or to remand it.
For instance, in United States against Hasting, where the issue was harmless error, there was a question, A, whether the Court of Appeals was obliged to consider harmless error, and B, whether if it was obliged to consider it the error was harmless.
And this Court chose to rule--
Unidentified Justice: Would we have enough before us in the record to determine the reasonable suspicion issue as it stands?
Andrew L. Frey: --Well, we think there quite clearly was enough to amount to a reasonable suspicion--
Unidentified Justice: Of a narcotics... transportation of illegal drugs?
Andrew L. Frey: --Yes, we think so.
Unidentified Justice: And so in responding to Justice Stevens, you are not asking the Court to rely on the speeding violation as--
Andrew L. Frey: No, because... I think the speeding violation would justify the initial stop, but I don't think that carries the day for us because the problem here is the validity of detaining Savage for 15 or 20 minutes while Cooke was able to arrive on the scene and conduct his investigation.
Unidentified Justice: --I take it you also are not really relying on the pulling away of the van at the time they... they had already decided to stop them.
Andrew L. Frey: That is true.
We are not relying on it to justify the stop, because the siren already had been turned on, if they didn't have reasonable suspicion.
Unidentified Justice: Do you think that activity made it reasonable to detain them for a little longer than if he had not pulled away as--
Andrew L. Frey: Definitely.
Unidentified Justice: --So there is kind of reasonable suspicion enough to stop them, and then a little more reasonable suspicion to justify 15 minutes--
Andrew L. Frey: --It is not just that it adds to the increment of suspicion.
Unidentified Justice: --There are two levels of reasonable suspicion.
Andrew L. Frey: It is that it necessitates the extended detention, which otherwise would not have been necessary.
Unidentified Justice: I see.
Sort of like an exigent circumstance that made it necessary.
Andrew L. Frey: Part of the question is whether it was justified to detain respondent Savage for 15 or 20 minutes until Cooke conducted his investigation, and we are saying that the fact that Savage sped off down the road, almost running into Thrasher's police car, and was only apprehended a half a mile away, separate, and there are only two police officers involved in the investigation, so if they wanted to investigate both of these individuals, one had to stop with one, the other had to pursue the other.
And as it turned out, quite reasonably, Thrasher had the equipment, pursued the vehicle that was trying to flee, and Agent Cooke stopped with the vehicle that had pulled over.
Now, I think this case poses as its primary issue, stated most broadly, whether the Fourth Amendment generally prohibits the prolongation of a stop based on reasonable suspicion short of probable cause for more than a few minutes.
And if the Fourth Amendment does sometimes permit such extended detentions, the narrower question is whether the circumstances of this case were such as to justify the detentions here.
Now, in addition, because the respondents are fugitives, the Court may also deem it necessary to consider the effect that that has on the proper disposition of this case.
We have addressed it in our reply brief, and I would be happy to answer any questions that the Court may have.
Unidentified Justice: Your position basically is, heads you win, tails they lose.
Is that right?
Andrew L. Frey: Well, it's the same essentially as their position.
That is, their position is, if they win the case, maybe they will show up again, and if they lose the case, then they won't.
So it is true in a sense that--
Unidentified Justice: If your position is right, the third alternative in your reply brief, what motivation would the other side have to really fight the case as a true adversary, you know, all the problems that are involved in cases--
Andrew L. Frey: --Well, the other side is not a true adversary.
The Court declined to appoint Mr. Kadish to represent the respondents, I assume precisely because they were fugitives.
Unidentified Justice: --But do you think that is an appropriate case for us to decide constitutional issues in--
Andrew L. Frey: I have no doubt that--
Unidentified Justice: --when there is no way in the world that you can lose?
Andrew L. Frey: --Well, when you say that there is no way in the world that we can lose, it is as though we were here arguing about a constitutional question as in Milton against Wainwright, which may in the end turn out to be harmless error.
There may be no way in the world we can lose because an error is harmless.
In United States against Leon the argument was made that if you had a reasonable mistake exception to the exclusionary rule, then that would freeze the development of Fourth Amendment law, because you would always know when you had a new Fourth Amendment issue that the government in the end was going to win on the suppression motion, and yet this Court said there is nothing in the Court's jurisprudence that makes it inappropriate to first consider the merits, and then if it is necessary and appropriate to do so, turn to the question of remedy.
No question that we have a full adversarial presentation.
I expect Mr. Kadish to be every bit as vigorous today as if he were here representing Sharpe and Savage--
Unidentified Justice: You mean there is no difference between amicus curiae and respondent?
Andrew L. Frey: --Well, it is frequent in this Court's past jurisprudence that there has not been--
Unidentified Justice: That wasn't my question.
There is a difference.
Andrew L. Frey: --There is a difference, but I don't think it is a difference that deprives this case of its adversarial--
Unidentified Justice: Well, it is not a normal adversarial proceeding, is it?
Andrew L. Frey: --Well, it is not a normal one, but it is one that is far from unknown to this Court.
Going back... the first case that I am aware of, although I am sure it happened before, was a case called Granville Smith, which involved the validity of a Virgin Islands divorce law where both parties took the position that the law was valid and that the divorce they had was good, and the Court appointed an amicus to defend the judgment--
Unidentified Justice: There is also a difference between a divorce and going to jail, believe it or not.
Andrew L. Frey: --Well, the problem of... the Molinaro principle seems to me quite clearly to suggest that as far as the going to jail aspect of this case is concerned, respondents, by taking it upon themselves to become fugitives, are going to end up going to jail.
I don't understand... that seems to me the rock bottom principle, that is, that the Court will not allow a party to place itself beyond the reach of the Court's judgment, and if the Court's judgment is unfavorable, not to be subject--
Unidentified Justice: Mr. Frey, had they been released before--
Andrew L. Frey: --They were on bail.
Unidentified Justice: --Was that it, on bail?
Andrew L. Frey: They were on bail.
Unidentified Justice: And they forfeited the bail?
Is that it?
Andrew L. Frey: Bail has been forfeited.
A bench warrant has been issued for their arrest.
There are also other charges at least against Sharpe in other jurisdictions from which he is also a fugitive.
But it seems to me that the one point that is clear, and we analogize this in our brief to the situation in Walder and Havens, because this is a claim for suppression of evidence under the Fourth Amendment exclusionary rule.
This is not a claim that these defendants are innocent, which might cause a different set of concerns.
So that if you view it as a matter of exclusionary rule policy, you must ask yourself the question whether these defendants are entitled to a favorable judgment reversing their conviction on the grounds of an illegal search or seizure when they are not willing to submit to an unfavorable judgment should the Court render one.
Unidentified Justice: Well, I think you make a very persuasive argument that... at least alternate two, that if they are fugitives, they forfeit their right to have the benefit of any judgment.
Once they have forfeited that right, they are not the kind of adversary I normally like to have arguing constitutional questions.
That is my problem.
I understand that there are precedents of the Court that support your view, but isn't there at least some argument to the contrary?
Andrew L. Frey: In the Haslip case last term you had to appoint someone who was an amicus to defend the judgment of the Court of Appeals.
Unidentified Justice: That was not a fugitive involved, though.
Andrew L. Frey: It did not involve a fugitive, but--
Unidentified Justice: And the litigant himself... I mean, you have to look not only at the lawyer, but the litigant himself here has no interest in the... if we agree with you on Molinaro, the litigant himself has no interest in what happens in this case.
Andrew L. Frey: --That is precisely the argument that was made in the exclusionary rule case.
Unidentified Justice: Well, I realize that, and that is one of the unfortunate things about the courts.
Andrew L. Frey: Well, but that was a little bit different, because there the claim was that the case was moot, or that we somehow had lost the right to pursue our case by deporting them, but the respondents had done nothing wrong other than their drug smuggling.
That is, their departure from the jurisdiction of the Court was not their fault, whereas here it is clearly their fault.
Unidentified Justice: Of course, they didn't bring this case.
You did, didn't you?
Andrew L. Frey: We certainly did bring this case.
Unidentified Justice: The government locks over a whole list of cases, and finds the one that the man is gone and doesn't have any lawyer.
Andrew L. Frey: No, when we petitioned, they were not fugitives, and when the Court granted this petition we were still unaware, and I am not sure whether Savage was a fugitive.
It was only after the Court granted the petition that Savage was declared a fugitive, and it was only in August, after we filed our opening brief in August of this year, that we learned that both respondents were fugitives.
And I must say that the Court has in the past always been satisfied... if you are not satisfied that you have an adequate adversarial presentation, if you are not satisfied that you have an adequate basis to decide the merits of the Fourth Amendment issue in this case, then by all weans simply vacate the case and remand with instructions to dismiss their appeal.
But I think you will find that there has been a competent, full adversarial presentation, and that you will have--
Unidentified Justice: And won't there be another case just like this?
Andrew L. Frey: --Well, that is the nature of cases before this Court by and large.
Because they involve important issues, there will be another case.
Unidentified Justice: Right down by Myrtle Beach there will be another one.
Andrew L. Frey: There will certainly be other cases.
This is an important and recurring issue.
It is the nature of the beast that there will be other cases.
Now, I think the main burden of our argument on the merits here is that both from the standpoint of Fourth Amendment policy and from the standpoint of this Court's precedence, the Court of Appeals erred in holding that there is some strict and brief time limit on detentions based on suspicion short of probable cause.
This kind of issue can arise in various circumstances, and I would like to just give a couple of examples for the Court to have in mind.
For instance, a car may be stopped on the basis of a reasonable suspicion that it is stolen, and it may take five or ten or fifteen minutes to run a computer check on the license plate or registration that is produced in order to determine whether or not it is stolen, and in those circumstances law enforcement officers would have substantial reasons for wanting to detain the individual in the automobile long enough to conduct such a check.
That doesn't mean if it took an hour or two hours that they would be justified in doing it.
Unidentified Justice: Well, Mr. Frey, what is your suggestion as to the outer limit of time in circumstances where there may be detention?
Andrew L. Frey: My suggestion is that there is no hard and fast outer limit of time, and that the Court in fact made that quite clear in United States against Place when it rejected the ALI 20-minute formulation.
ALI had proposed a strict outer limit of 20 minutes.
But I think it is quite clear--
Unidentified Justice: What formula do you suggest ought to guide us?
Andrew L. Frey: --I suggest that the Court has adopted the formula of Professor LaFave in his treatise, which has been endorsed quite clearly in the opinion of the Court in Michigan against Summers, and essentially I would sum it up by saying that in determining whether a detention is reasonable, the inquiry should focus on the purpose of extending the detention, that is, the specific course of action that the police tend to pursue during the period, whether these actions are likely to produce confirmation of their suspicions within a relatively short period, and I am not willing to give a precise number to that.
The Court should consider such factors as the gravity of the offense under investigation, the risk that the suspect would avoid apprehension if he is released, the substantiality of the officer's suspicion, the degree of inconvenience caused to the suspect by the detention, and the intrusion of circumstances beyond the officer's control, and this is quite relevant to this case, that caused the prolongation of the detention, and, of course, considerations relating to the officer's personal safety.
Now, I understand that you have consistently adopted the position, but ordinarily in dissent, that--
Unidentified Justice: I won't stop for that reason.
Andrew L. Frey: --Hm?
Unidentified Justice: I won't stop for that reason.
Andrew L. Frey: No, well, perhaps not, but I would like to suggest that even under your views that in this case the government's position ought to prevail, and let me explain that.
You did join the decision of the Court in United States against Cortez, where there was... the issue was whether there was reasonable suspicion.
The Court all agreed that there was.
The car was pulled over, and within a matter of a couple of minutes, there was consent to a search, which produced the illegal aliens who were hidden in the back of the vehicle.
Now, in this case, if you look at what happened from the time Officer Cooke arrived at the pickup until he acquired probable cause, there was a question and answer period, a request for consent to search.
All of this took somewhere around five minutes.
Savage had claimed that the vehicle was empty, and that he was on the way to get the shock absorbers fixed.
Cooke then conducted what we might call a non-search inspection of the vehicle.
He stepped on the bumper to see whether it was empty, as had been suggested, or fully loaded, as he thought he had observed in pursuing it.
And he put his nose up to the vehicle, took a strong breath, and smelled marijuana.
Now, all of this would be, I think, within the confines of what you would agree would be a permissible Terry stop, a very concise, directed inquiry of short duration.
The only reason in this case that that didn't happen right away is because of the conduct of the suspects in one of them separating himself from the other and proceeding down the road.
Now, it seems to me that at least in those circumstances the government ought to be permitted to conduct that narrow investigation, and the delay here of ten or fifteen minutes in Agent Cooke getting to the scene so that he could conduct that brief investigation should not be counted in the balance against the government.
This should be held to be within the scope of a permissible stop even under the view that only the narrowest kind of intrusion is justified.
Unidentified Justice: Well, Mr. Frey, what do you do about this?
Had there been two agents who were qualified to act as drug investigators, the detention wouldn't have... even though the man sped away, if the agent following him hadn't been a trooper but a drug agent--
Andrew L. Frey: There probably would have been no excuse in that case for extending the detention.
Unidentified Justice: --What is the excuse for having people conduct drug investigations who aren't qualified?
I am just asking you whether there is a--
Andrew L. Frey: Exigent circumstances--
Unidentified Justice: --whether there was a less intrusive alternative.
Andrew L. Frey: --Well, it wasn't planned in this case that Patrolman Thrasher would be conducting a drug investigation.
He was called in when--
Unidentified Justice: Well, whether it was planned or not, I would suppose that experience would indicate that you might need two agents.
As a matter of fact, as soon as they decided to stop one car they called for help.
Andrew L. Frey: --There were a large group of agents who were conducting an investigation in a two-county area who were part of the task force that was investigating this suspected landing of large quantities of marijuana on the beaches of North Carolina.
Unidentified Justice: Nevertheless, if there had been two qualified agents, this case wouldn't be here probably.
Andrew L. Frey: Well, I assume the detention would not have been as extended, but I find it hard to see how that could possibly have any effect on the correct disposition of this case.
Unidentified Justice: Why?
Andrew L. Frey: Because there cannot... I mean, unless you are saying that whatever number of agents they are going to use in an investigation, they ought to double them, so in case they run into two cars together, they have two people to stop them.
Unidentified Justice: Well, it seems to me that if a single agent is patrolling, I suppose he is out there to do something like making a stop if he has got reasonable suspicion.
Now, just as soon as he decided to stop, he called for help.
Andrew L. Frey: That's right, but the only help was--
Unidentified Justice: I thought that... is it unreasonable to suggest that the government ought to have... they ought to travel in pairs or not?
Andrew L. Frey: --This is a little bit like the suggestion of Florida against Royer that the government ought to have a dog handy at every airport.
I mean, the fact of the matter is that--
Unidentified Justice: Or like in Place, they should have had one at every airport?
Andrew L. Frey: --Well, they don't have one at every airport.
I mean, in this case it seems to me perfectly clear we have no evidence about the nature of the rest of the investigation, what the agents were doing.
The idea that Cooke should have been... the Court has no basis, it seems to me, for suggesting that Cooke should have been accompanied by another drug agent.
Cooke... a situation developed in which--
Unidentified Justice: Well, they just take their risk, though, in terms of the Fourth Amendment.
Andrew L. Frey: --If the Court concludes that the respondents should gain because Savage refused to stop when asked to stop and sped off down the highway and created this situation, which could not have been... I mean, even on your hypothesis, there is no reason why Cooke wouldn't suppose that one trained DEA agent would be enough.
How could he anticipate this kind of development?
If they have to staff their investigations to anticipate something like that, you will have nothing but--
Unidentified Justice: Well, you anticipate making arrests, and as soon as you decide to make a stop, you call for another agent.
Andrew L. Frey: --Well, but the other agents, who knows where they were?
I mean, this seems to me a prescription, if the concern of the Fourth Amendment is about police... controlling the conduct of the police, the prescription--
Unidentified Justice: The concern in Terry kind of stops is to don't do anything more than you really have to.
Andrew L. Frey: --Well, don't do anything more than is reasonably necessary for the purpose of confirming or rebutting your suspicions within a reasonably short period of time, but I simply cannot see how the Court could say in this case that the agent--
Unidentified Justice: Well, Mr. Frey, supposing that the camper was following... I don't know what kind of vehicle the other one was, a white Chevrolet or something, and the man, the agent was by himself.
He pulled the camper over and the other car sped off.
They didn't both stop.
And he happened to be alone.
Could he have called the state police and said, stop a green Chevrolet or whatever it might be, and say there are four green Chevrolets in the next five miles, could they stop them all?
Andrew L. Frey: --Now you are asking me... I have no doubt that he could call and ask for help in stopping that vehicle.
Now, if his--
Unidentified Justice: Just a green Chevrolet?
Andrew L. Frey: --Well--
Unidentified Justice: Well, you would have to be sure it is--
Andrew L. Frey: --At 7:00 o'clock in the morning, I think there probably would not have been four green Chevrolets speeding down the highway.
Unidentified Justice: --Take a blue Honda then.
Andrew L. Frey: The question is whether there is reasonable suspicion to justify the stop, and I have no difficulty in saying that he could call for help.
Now, if you suddenly ran into a car dealers' convention then you might not be able to stop any of them.
If there are no further questions.
Chief Justice Warren E. Burger: Mr. Kadish.
ORAL ARGUMENT OF MARK J. KADISH, ESQ., AS AMICUS CURIAE IN SUPPORT OF JUDGMENT BELOW
Mark J. Kadish: Mr. Chief Justice, members of the Court, it is hard for me to refrain from calling Sharpe and Savage my clients since they were.
I was trial counsel, so if I slip, please forgive me.
There are certain facts which Mr. Frey has mentioned which I think need some clarification.
One is that at the time of the actual stop of the Sharpe vehicle, that was done by Cooke.
That is on Page 17 of the record.
He waved Sharpe over.
Then, over the radio, Thrasher said to Cooke, I'll take the camper.
He then moves forward.
There is no evidence in the record that he sped forward.
The record is that the camper and the state trooper vehicle almost hit accidentally.
That is what the record actually says.
And he put on his blue light, and apparently about a half a mile down the road, which isn't very far, they both succeeded in pulling over to the... on the south side of the road.
Now, you have both vehicles stopped.
Cooke gets out of the car, and he goes over to Sharpe, and he says, give me your license, and Sharpe gives him a license that says Pavlovich on it, but at that time Cooke doesn't know who the man is.
So he thinks he is Pavlovich.
He then immediately calls for Myrtle Beach Police backup.
In the meantime, there is no colloquy between Sharpe and Cooke.
He doesn't ask him a single question in the stop.
He doesn't say, what are you doing?
Are you in tandem with the camper?
Is there dope in the camper?
What are you doing out here at 6:30 in the morning?
Even more than that, Cooke follows them for 20 miles to this point from the beach area in North Carolina, and during the entire time Cooke doesn't attempt to raise any DEA people on the radio, even though there is an entire DEA task force operating in the area, to answer Justice Blackmun's question about that.
Now, what we have is that the vehicles arrive in Myrtle Beach on the outskirts and Cooke says, uh-oh, I am going to lose them in town.
I've got to do something now.
I am really not sure what is happening.
He pulls them over, asks no questions, calls the Myrtle Beach backup, they get them and put them in the back of a police car, marked police car, two armed officers, and they sit there for 40 minutes.
He takes Sharpe's license, puts it in his pocket, puts the other passenger of the car, who was never prosecuted, in the back of the police car, leaves them both there under armed guard, never having asked a question, goes up the road and sees Savage.
In the meantime, Savage has asked Thrasher twice to leave, right in the record, admitted by Thrasher.
He says, what do you want me for?
Here is my driver's license, here is my bill of sale, which by the way happened to be in the name of Pavlovich.
He says, and I want to go.
Thrasher says, you can't go, I'm holding you for Cooke.
However, if I really want to get you, I can hold you for that speeding.
Clearly, the record factually suggests that speeding was a pretext.
At any event, Cooke comes up and Savage says, I want to leave, give me my license back.
In the meantime, Thrasher has put Savage's license in his pocket.
Cooke says, you can't leave.
Then, and only then, Cooke looks at the registration and sees the name Pavlovich, and the bells go off, because he now connects the two vehicles.
Until that point, there wasn't even a connection that they were traveling in some kind of a concerted action except for the fact that they were just driving one behind the other, and because they had gone through the campground together.
Unidentified Justice: When two cars travel together, one behind the other, and make a complete circle, they are not together?
Mark J. Kadish: That did suggest, I agree, Justice Marshall, that did suggest that they were together, but not that they were involved in criminal activity together, only that they were together.
Once he had seen the name Pavlovich on the registration of the camper and on the driver's license of Sharpe, that drew the people definitely together.
Now, at this point, Sharpe, who has not been advised of anything, has not been advised of his rights, has not been advised of why he was stopped, has not been advised why he has been put in a police car with two armed officers watching over him, he is just sitting there with his passenger.
Forty minutes goes by.
Then the officer goes over and does the test that Mr. Frey has mentioned.
He steps on the bumper.
It feels like it is heavy.
He looks at the windows.
He sees he can't look inside, and he goes to the truck and opens the door himself, pulls out the keys from the ignition, opens the camper lock, and there are burlap bags.
No marijuana, mind you, but burlap bags which look like marijuana that he has seen in other cases.
He then says, you are under arrest.
It is our theory, as set forth in our brief amicus curiae that this case is closest to Dunaway in the scheme of cases that this Court has adjudicated in recent years.
It is closer to Dunaway and different than most of the others.
For example, this case is atypical to the airport cases.
It is not like Mendenhall, Reid, Royer, Place, or Rodriguez, for a whole bunch of reasons that are obvious.
Unidentified Justice: Weren't there some observations by the agents that the car was riding low?
Mark J. Kadish: Yes.
Unidentified Justice: And through all of this rather abnormal turning and weaving?
Mark J. Kadish: The only abnormal turn, Mr. Chief Justice, was the turn through the campground.
Unidentified Justice: The big circle that Justice Marshall referred to.
Mark J. Kadish: If you look at the record, and you look at that on a map, which I believe is actually in the record, you see that there wasn't any weaving or erratic type of turn.
It was a simple turn through the campground.
I believe they actually stopped at a stop sign, both vehicles, and then when they came out to the other side of the campground, they turned back on the main highway.
It wasn't necessarily, I think, viewed as erratic or evasive, and the record doesn't reflect that, and the Fourth Circuit didn't quite view it that way.
Unidentified Justice: Taken into account--
--Do you know the best way to... excuse me.
Taken into account with the overweighted load and all the other factors, do you consider... are the agents required, the police required to consider each item alone or the aggregate of their observations?
Mark J. Kadish: I think I would have to concede the aggregate of the observations or what the officer should look at.
I don't think, however, that necessarily coming from this area of North Carolina which the record reflects is a heavy camping vacation area, that an overloaded camper with covered windows is necessarily the signs of a vehicle transporting drugs.
I mean, you have to go some to reach that conclusion, and that is what the Circuit Court felt, but I would agree that certainly all of the circumstances need to be looked at before you can--
Unidentified Justice: Counsel, getting back to going around the circle--
Mark J. Kadish: --Yes, sir.
Unidentified Justice: --do you agree that the best way to find out whether you are being followed is to make four right turns?
Mark J. Kadish: I couldn't disagree with that.
Unidentified Justice: So when you make a circle it is the same thing.
Mark J. Kadish: Yes.
Unidentified Justice: So once they made the circle, they knew they were being followed.
Mark J. Kadish: I would say that was a fair--
Unidentified Justice: And that's the time that any police officer knows that he has to make an arrest.
Mark J. Kadish: --I am not as much debating here the articulable suspicion, although I think it is extremely weak.
I think it is extremely weak compared to other cases, but the circuit has assumed that, at least for the purposes of their opinion.
What I was focusing on just a minute ago, if the Court permits me to get back to it, is that in the airport searches, you just have an area unto itself.
In the original Terry trilogy of Terry, Adams, and Brignoni-Ponce, followed later by Brown versus Illinois and Collander versus Rawson, you have these situation of the patdown, the frisk, the Brignoni-Ponce momentary stop of an automobile, like Cortez, these are clearly the purest Terry type of cases.
Then you have the automobile cases, the other automobile cases like Mimms and Delaware versus Crowse, which are traffic cases, clearly related to either the random traffic stop in Crowse, and Mimms, the legitimate traffic stop followed by come out of the car, patdown, but clearly brief Terry situations.
Now, none of these cases that I am talking about except for the airport cases are cases where detentions have lasted more than a few minutes, none of them.
Unidentified Justice: When you say a few minutes, do you have any particular amount of minutes in mind?
Mark J. Kadish: Well, it is hard to say what... the time that took place in Terry versus Ohio, I think, for example, just being actually that, a few minutes, two, three, four minutes for the patdown.
Unidentified Justice: How about Michigan against Long?
Mark J. Kadish: I am not sure exactly what the time was in that case.
I don't know in Michigan versus Long.
I know that the time was extended somewhat in the airport cases.
For example, in Place, I believe we had a 90-minute detention of the luggage.
That was the outside limit that I think the Court has gone.
This case... and of course the distinction I would make there is, we are dealing there with things, luggage.
Here we are dealing with persons.
There we are dealing with expectations of privacy which are to some extent in an airport minimized.
Everybody subjects themselves to searches in airports.
We all know that.
But on a highway, in your own car, that is not necessarily the case, although in the automobile cases of this Court there is perhaps a little wider breadth to what an individual subjects himself to.
But by and large, we then go to Cortez, the Chevron shoe case, which is a quick case, and Brignoni-Ponce, as I said, which is a quick case.
There is an aberration kind of in that Van Leuwen case, which is the 29-hour coin, counterfeit coin case, which involves the postal authorities and really doesn't bear any analogy to what we have here.
I think... and in Michigan versus Summers, Justice Stevens, I believe, as I read the case, tied the ruling there more to the... and the lengthy detention to the execution of a warrant in the man's home and gave reasons that to me made a lot of sense to justify the lengthy detention there being tied to warrant under the protection of a neutral and detached magistrate.
What do we have here?
Here we just seem to have a Dunaway.
These two men are taken to the side of the roadway.
Neither of them is informed what the whole thing is about.
When Savage is taken out by Thrasher, he just simply arrests him.
He takes him, he puts him up against the van, spread-eagled, at gunpoint.
Mr. Frey didn't mention that.
Takes his license away, his registration away, and keeps it, and holds him there.
He holsters the gun at that point when he sees he is unarmed.
That is an arrest.
That is not a Terry stop.
Unidentified Justice: Do you think, Mr. Kadish, that they were in any doubt about why they were being stopped?
You seem to suggest that that left them in some kind of predicament.
Mark J. Kadish: No, they, I am sure, knew why they were stopped, but as I read it the Terry cases and the progeny are talking about the objective view of the officer... not of the officer, the objective view that a reasonable officer would have under the situation, not the accused, so that I believe that that is the test of the Court, and I believe that would be the answer to your question.
So that what I am concerned about is that if Savage is apparently under arrest at gunpoint and says, you cannot leave, that Mr. Justice Brennan found out in answer to his questions before, then you have Sharpe, who is clearly under arrest.
What better indicia do you have of arrest than being put--
Unidentified Justice: Mr. Kadish?
Mark J. Kadish: --Yes, sir.
Unidentified Justice: You use the term "under arrest" or "at gunpoint" as if those were somehow inconsistent with a Terry stop.
My understanding of a Terry stop is that it differs from an arrest in its duration and its purpose, but I would think that the custody which a person is in under a Terry stop is just as complete as in an arrest.
Mark J. Kadish: Well, except that... except that these people here... I should have used the term "de facto arrest", because I think that is the progression that you see in Dunaway versus New York.
When Sharpe and Savage are held as I have described it to you, which I think is a candid statement of what the record says, at that point Cooke in effect arrested them before he smelled the marijuana.
They were clearly in a de facto arrest situation, but the level--
Unidentified Justice: What is a de facto arrest?
Mark J. Kadish: --Well, I am not sure.
The Fourth Circuit uses that word.
I have used it.
But here is what I think it means, and it is like levels, levels that Justice Stevens was talking about before.
You can go to a level first of a seizure, a momentary seizure.
Then you can go to the level where the man is held at gunpoint and cannot move, or locked in... or put in the back of a police car where he cannot leave.
At that point you are at a probable cause level.
Unidentified Justice: Supposing I try to make a Terry stop on reasonable suspicion and the person whom I am trying to stop simply tries to flee.
Am I not entitled to draw a gun or use what force seems to be necessary to bring him into custody?
Mark J. Kadish: I don't know the answer to that, sir.
I would have to look at the totality of the circumstances of the situation.
Unidentified Justice: You suggested that the custody involved in a Terry stop is kind of a loose, floating thing that if the defendant wants to evade it he is free to evade it?
Mark J. Kadish: No, I am not saying he is free to evade it, but there has to be a justification, a reasonable justification to keep him for that period of time.
Unidentified Justice: But supposing there is a reasonable justification.
Isn't the law enforcement officer entitled to use reasonable means to keep him for that length of time?
Mark J. Kadish: But Perhaps in this case, as Mr.... I mean, as Justice White has suggested, perhaps they didn't use their time wisely.
Unidentified Justice: Well, but I am not interested right now in whether they used their time wisely.
Is it part of your argument that the showing of a gun or the spread eagle search is per se inconsistent with a Terry stop?
Mark J. Kadish: That's right, per se inconsistent.
And that it is an indicia that a probable cause standard has arisen, has been injected by the officers into the case, and that at that point they had no probable cause.
The government concedes, the government concedes in this case that the probable cause did not occur until the olfactory actions of Cooke with the marijuana.
Therefore, my position is, following the Dunaway analogy, that a probable cause situation clearly developed with Sharpe and clearly developed with Savage as I have described.
Alternatively, the degree of the intrusion reached a level which is inconsistent with Terry if you look at the case as a non-Dunaway but a Terry case.
The intrusion had reached a level where it became so offensive to both Sharpe and Savage that they had their Fourth Amendments rights interfered with.
I want to say one thing--
Unidentified Justice: In making that argument, Mr. Kadish, I haven't heard you say anything about the significance of their requests to be allowed to leave.
Mark J. Kadish: --Oh, yes, and I thank Your Honor for the suggestion.
Clearly where the individuals who are being detained into those minutes beyond brief minutes that have been viewed over and over again by this Court in terms of a few minutes... brevity, momentary, these are the words from your cases... where an individual says, I want to go, then the level of the Fourth Amendment violation increases dramatically because he has said, I do not want to be seized.
I want to be free.
Unidentified Justice: Well, isn't that inconsistent with Mendenhall and with the combination of opinions in Florida against Royer which adopted Justice Stewart's test in Mendenhall that there is not even a seizure if the defendant objectively feels he is free to leave?
Mark J. Kadish: Well, as I said, in reading Mendenhall and reading Royer, I view the airport cases and the context in which they all arise, which is almost identical, as just having a special place in this Court, and I think the plurality decisions in Royer and Place... I think I have that right... show that the Court itself has not fully determined in which direction the airport cases are finally going to go.
I think that perhaps those cases are going to end up as a special area in and of themselves, because... and I say that because of the number... there are one, two, three, four, five cases that have been considered by the Court since 1980 dealing with airport searches.
Can I talk about the fugitivity of my past clients for just a moment, please?
I do feel, although I didn't sound like a non-adversary probably... it is in my blood... but I do feel that for the Court to decide the issue before it, which I view as very, very critical issues, in the context of a case involving the fugitivity of my clients, is somewhat of a disadvantage to them for the reasons that Justice Marshall and Justice Stevens have stated.
It is not that I don't feel that--
Unidentified Justice: Well, your clients... your clients certainly opted to leave knowing they had no right to do so.
Mark J. Kadish: --Right.
Unidentified Justice: And I just wonder whether they have a very good argument for saying the Court shouldn't deal with the issues that they were aware could be raised and were raised.
Mark J. Kadish: Justice O'Connor, what can I say?
The equities are not with me in that argument, and I know that.
Put on the other hand, if the Court is going to make constitutional law in the critical area of the Fourth Amendment, particularly as argued by Mr. Frey, which if his argument is adopted by the Court will lead to a somewhat major expansion of the Terry doctrine.
Unidentified Justice: How are they disadvantaged now?
Mark J. Kadish: Well, I don't know that they are... I don't know that they are disadvantaged.
Maybe they neither win nor they lose.
It just seems to me as a lawyer who... more as a trial lawyer than a constitutional lawyer, that the Court should direct major constitutional decisions to cases where there are real persons and defendants before it.
Unidentified Justice: Well, Mr. Kadish, if we agree with you, I suppose you know we would vacate the judgment below.
Mark J. Kadish: I know that.
Unidentified Justice: And leave your clients in the soup.
Mark J. Kadish: Well, as I said--
Unidentified Justice: If you really feel good about your case, why don't you want us to decide it?
Mark J. Kadish: --Well, I do feel good about--
Unidentified Justice: You may win.
You may win.
Mark J. Kadish: --I do feel good about my case, but you know, sometimes... sometimes winning is not what it is all about exactly.
Unidentified Justice: Well, I know, but losing... if you win, your clients lose.
If you win on this present argument, your clients lose?
Mark J. Kadish: I understand that, and if they lose, they lose in one way, and I guess perhaps down the line maybe they... in my own way they would win in another.
I don't know.
But I just feel, as Justice Marshall does, that there is a problem.
Unidentified Justice: I suppose we've got to catch them.
No matter how we decide it, they have got to be caught before anybody wins or loses here.
Mark J. Kadish: That's right.
I guess in today's world, at least from where I am sitting, most of them get caught one way or the other.
Thank you very much.
Chief Justice Warren E. Burger: Mr. Frey?
ORAL ARGUMENT OF ANDREW L. FREY, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL
Andrew L. Frey: I just wanted to make a couple of points.
Mr. Kadish said that my argument would lead to a major expansion of Terry doctrine, so I wanted to remind the Court of what it said in Michigan against Summers.
It said that Terry is not
"an almost unique exception to a hard and fast standard of probable cause. "
"Rather, the key principle of the Fourth Amendment is reasonableness, balancing of competing interests. "
It said that if the purpose underlying a Terry stop, investigating possible criminal activity, is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams.
It endorsed Professor LaFave's summary of the governing principles that the permissibility of extending a Terry stop should turn on
"whether the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon, and whether it is rather essential to the investigation that the suspect's presence be continued during that interval. "
And in Place, while the Court struck down a 90-minute detention, I think the clear inference was that it had taken 20 or 30 minutes to expose the luggage to a drug detecting dog--
Unidentified Justice: Mr. Frey, do you have any Courts of Appeals decisions in your favor on this?
Andrew L. Frey: --Yes, I think we have some, but I don't know that I could... they are cited in the brief.
There are many Courts of Appeals decisions on these issues, and I could--
Unidentified Justice: How about state courts?
Andrew L. Frey: --I am not at all familiar with the state courts, but I would rather have Supreme Court decisions in my favor, and I think I do.
Unidentified Justice: You don't... on these facts, you don't.
You are relying on an analysis or an approach.
Andrew L. Frey: I am relying on an analysis or an approach that has been consistently in recent cases--
Unidentified Justice: That same approach, though, wouldn't justify two or three hours, I don't suppose.
Andrew L. Frey: --No, I don't know whether we would be here suggesting that two or three hours would be permissible.
Unidentified Justice: I don't know why not?
Andrew L. Frey: Well, because the approach requires looking at the need to extend the detention, and it recognizes, as I think Dunaway, which was a totally different cases, recognizes, that there is an outer limit on the permissible length of time that you could detain somebody.
But I cannot believe that we step back from it and look at this case, you are a DEA agent, you suspect there is a truckload of marijuana going down the highway, you want to try to find out whether you can confirm your suspicions instead of letting over a ton of marijuana go off into the distribution chain.
Is it really so unreasonable to do what the officers did in this case?
Does the Constitution of the United States say that these rather modest measures can't be taken for the purpose of a very important societal interest such as the detention of this kind of crime?
I just find it difficult to believe, and I just wanted to say to Justice Brennan that the not free to leave point, if he were free to leave, there would not be a seizure regulated by the Fourth Amendment.
This case is about the difference, where the line is between a seizure that is permissible on reasonable suspicion and a seizure that requires probable cause.
Both of those are similarly characterized by the suspect not being free to leave, and therefore the fact that he says I would like to leave and the officers say no seems to me quite immaterial to the issue.
Unidentified Justice: Couldn't you argue that the officer could say, well, if you want to leave, go ahead, but I am keeping your truck?
That is what they do in the airport cases.
You seize the luggage.
If the fellow wants to go on to Boston, let him go.
Andrew L. Frey: Well, that would be true, although I think the principle of Michigan against Summers is that if you are going to find out very shortly whether you have a basis for arresting the individual or you hope to, then you are not obliged to let him go off into the twilight.
Unidentified Justice: Couldn't you argue that discovery of the marijuana was a fruit of the seizure of the truck, not the person?
Andrew L. Frey: You could, but I think one of the points that Mr. Kadish was in error about was that the Place case was very careful to make the point that at least in those circumstances it was not distinguishing between the seizure of the property and the seizure of the person, but was deeming them both regulated by the same standard.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.