KNOWLES v. IOWA
After stopping him for speeding, an Iowa police officer issued Patrick Knowles a citation and conducted a full search of his car without probable cause or Knowles' consent. When his search turned up a "pot pipe" and some marijuana, the officer arrested Knowles on state drug charges. Knowles challenged these on grounds that because he was not arrested at any time prior to the search, the search was unconstitutional. On appeal from consecutive adverse rulings in lower courts, the Supreme Court granted Knowles certiorari.
Can a search of a stopped vehicle, that occurs prior to the driver's arrest, be sustained under the "search incident to arrest" exception that permits officers to search stopped vehicles without first obtaining a search warrant?
Legal provision: Amendment 4: Fourth Amendment
No. In a unanimous opinion that Court held that full stopped-car searches can only be conducted when the safety of the officers is at risk. One significant indication of such danger is when an officer arrests the subject as a reaction to possible or actual threat. In the present case, no serious danger accompanied the stop of Knowles car as evidenced by the officer's initial decision not to arrest Knowles or even issue him a ticket. As such, regardless of its uncovered contents, the subsequent search violated the "search incident to arrest" power and the Fourth Amendment's prohibition again unlawful search and seizures.
Argument of Paul Rosenberg
Chief Justice Rehnquist: We'll hear argument next in No. 97-7597, Patrick Knowles v. Iowa.
Mr. Rosenberg: Mr. Chief Justice, and may it please the Court:
By statute in Iowa, police are authorized to search any motor vehicle in which the driver receives a traffic citation.
The question presented here is whether Iowa's search incident citation statute shall be adopted by this Court as a new category of per se reasonable searches.
It was in March of 19...
Justice O'Connor: I'm not sure that's what the statute does.
The statute says, I believe, the issuance of a citation in lieu of arrest or in lieu of continued custody does not affect the officer's authority to conduct an otherwise lawful search.
So, I took it that the issue was whether this was a lawful search, not whether the statute said there can be a full-blown search.
I thought it left it to the subsequent determination of whether the search was lawful.
Now, in this case, the Iowa court said that a full search was lawful but, in the course of that, seemed to rely, at least in part, on Federal law under the Fourth Amendment.
Mr. Rosenberg: Well, the Iowa Supreme Court has construed this language that says otherwise lawful search to extend the search incident to... excuse me... search incident to arrest exception to encompass those circumstances where a citation is issued and there is in fact...
Justice O'Connor: Well, I thought what the court below did was to say that a full search on the occasion of a traffic citation was lawful in their view.
Isn't that what happened?
Mr. Rosenberg: Yes.
Yes, they did say that.
Justice Kennedy: Yes.
Justice O'Connor: It isn't that the statute requires that result.
They said that kind of a search is lawful.
So, I guess what we have to decide is whether under the Federal Constitution that's correct.
Mr. Rosenberg: That's correct, Your Honor.
In March of 1996, Mr. Knowles was pulled over for speeding in Newton, Iowa.
In all respects, this was a routine traffic encounter.
Mr. Knowles was obedient to the single deterrent to pull over.
He produced a valid driver's license.
A computer check revealed that there were no warrants for his arrest, and the police officer testified that he had no suspicion...
Justice Ginsburg: Mr. Rosenberg, could you just back up for a minute because in your answer to Justice O'Connor, you said something that I didn't understand you had challenged.
That is, I didn't understand that you had contested the authority to make a full custodial arrest for speeding.
You had only contested that if they don't and they merely give him a citation, then they can't search.
But I hadn't realized that you had raised the question that Justice Stewart left over in the Gustafson case, which was whether you could have constitutionally a full arrest for a traffic violation.
Where did you raise that question?
Mr. Rosenberg: We didn't raise the question of lawfulness of the arrest.
We're only questioning the lawfulness of the subsequent search.
Justice Ginsburg: Well, then your answer to Justice O'Connor was not right because she asked you if you were contesting the authority to make a full custodial arrest on the basis of a traffic violation, and you said you were.
But I understood that you were not, that you were making a more limited challenge, that is, if... assuming they could make a full custodial arrest, they didn't.
All they did was issue a citation.
Having done just a citation, they cannot engage in... in a full search.
Mr. Rosenberg: If I answered that way to Justice O'Connor's question, then I misspoke.
The statute says otherwise lawful search.
The Iowa Supreme Court held that the search was lawful.
At no stage in the proceeding from the district court to the Iowa Supreme Court to this Court have we contested the validity of the arrest... excuse me... the stop in this case or the authority to arrest in the circumstances of a traffic citation.
Justice Ginsburg: Arrest and make a full custodial... make a full search.
Mr. Rosenberg: Yes, under...
Justice Ginsburg: So, all that we're talking about is if they don't exercise that authority, authority you're not challenging, and merely issue a citation, can they nonetheless go ahead.
So, that's what we're talking about.
Mr. Rosenberg: That's correct, Your Honor.
The officer testified that he had no suspicion that Mr. Knowles was carrying contraband or a weapon or that he had such items concealed on his person or in his car.
At this point, being satisfied, he issued the citation to Mr. Knowles, handed it to him, and Mr. Knowles signed it.
At this point, the officer radioed for backup and searched Mr. Knowles' person and his automobile.
He found a small quantity of marijuana and what the officer called a pot pipe.
At the suppression hearing, the officer testified that he had no justification and no search... excuse me... no consent to conduct a search.
He was relying entirely on Iowa's search incident to citation law.
The Supreme Court, in deciding Mr. Knowles' appeal, essentially held that the search incident to arrest doctrine, which in United States v. Robinson was held to be a per se reasonable search, that this doctrine was going to be extended by the State of Iowa by virtue of the statute to situations in which a citation was issued.
The fundamental premise of the Iowa Supreme Court's decision was that the search incident to arrest doctrine does not require a custodial arrest.
It merely requires grounds for arrest or cause for arrest.
This premise is incorrect.
The search incident to arrest doctrine has historical legitimacy.
It existed at the common law in this country and in England, and it was always thought to involve search incident to arrest as a necessary and, it was assumed, reasonable search.
There was no comparable historical roots or historical legitimacy for a search incident to a citation or a search incident to any other means by which a criminal prosecution would be commenced outside of an arrest.
Justice O'Connor: Do you think it's... it's clear that a stop or a traffic offense committed in the officer's presence is not an arrest?
Mr. Rosenberg: The actual...
Justice O'Connor: Is that clear?
Mr. Rosenberg: The actual stop would not be an arrest.
Justice O'Connor: Is the person free to leave?
Mr. Rosenberg: No.
That would be a... a... a seizure, a brief detention, and this Court has held that it's a seizure.
But in order to effectuate an arrest, the officer would have to essentially handcuff the person and take them to the police station.
Justice O'Connor: Handcuffs are required?
Mr. Rosenberg: All arrested persons are handcuffed, yes.
Justice Souter: Well, would you agree then if the officer made the valid stop and exercised the... the option, which... which it is understood I think clearly that he has, to require the driver to get out of the car, the officer at that point could at least have... have gone to... to the... to the point of a Terry kind of pat-down search?
Do you... do you concede that?
Mr. Rosenberg: If he had the necessary suspicion...
Justice Scalia: No.
Justice Souter: He's... well, we assume that it's a valid stop for a traffic violation, and we assume that he has ordered the person out of the car so that the driver is standing right in front of him.
Could he not then have... have conducted a Terry pat-down without more?
Mr. Rosenberg: He could have conducted a Terry pat-down.
Chief Justice Rehnquist: Okay.
That would be regardless of any suspicion caused by the appearance of the person or bulge in his waist or something like that?
Mr. Rosenberg: Well, as recently as Minnesota v. Dickerson, the... this Court has reaffirmed the requirement of Terry, that there be some articulable basis to believe this person is armed and dangerous.
Justice Scalia: That's why I don't understand your response to Justice Souter.
I... don't you think that the mere fact that the person was speeding creates such an articulable reason why you have to search the person?
Mr. Rosenberg: No, I don't believe that simply speeding...
Justice Souter: Then your answer to me should have been different, shouldn't it?
Shouldn't you have said, no, he does not have the basis for a Terry pat-down?
Mr. Rosenberg: Yes, that's correct.
Justice Ginsburg: Well, you've... you have conceded that he could have been arrested, and what is it under Iowa law that it takes, you said, handcuffs going to the station?
Is that necessary?
Suppose the officer had just said, I'm placing you under arrest, and he said those words before he searched the driver and the passenger and the inside of the car.
Suppose he said, you're under arrest, and then he conducted the search.
Mr. Rosenberg: If he had done that, then it would have been a valid search incident to a lawful arrest.
Justice Ginsburg: So, the whole thing turns on whether the officer says you're under... you're under arrest or here's a ticket.
Mr. Rosenberg: Yes, but that is a distinction that... that...
Justice Ginsburg: Then what happened to the handcuffs and the station?
I'm trying to determine what constitutes an arrest under Iowa law, and if all it takes is the words, you're under arrest, then it's a different case than if you have to go through quite an... an involved procedure to effect the arrest.
Mr. Rosenberg: Well, Your Honor, an arrest in Iowa does not differ in terms of the seriousness of the offense.
An arrest is placing somebody in the custody of the State.
The State exercises dominion over their body, and they are arrested for the purposes of commencing a prosecution for a public offense.
It necessarily entails going to the jail and being booked at the jail and having to post bond.
That is what I understand to be...
Justice Ginsburg: Well, then you're giving a different answer to the one you gave before when I asked you, is it enough that the officer says, you're under arrest.
This is... the officer says, you're under arrest.
He then searches the car, finds whatever was found here, a small bit of marijuana, a pipe, then brings the person who he has already told you're under arrest down to the station house.
Mr. Rosenberg: I didn't mean... I just meant to say that when the officer says you're under arrest, that would commence the arrest process.
That is not the entire arrest.
That would begin the arrest process.
You are under arrest.
The officer would take control of the person.
Then the rest of the procedure would have to be...
Chief Justice Rehnquist: Your basic argument here, as... as I understand it, is that while there is a justification for a full search when you have an arrest, take the person into custody, the... as we said in... in Robinson, those facts are not present when you simply issue a citation.
Mr. Rosenberg: That's correct, Your Honor.
Justice Kennedy: Suppose the police officer said, look it, I'm entitled to arrest you and take you to the station, and I'm not going to do that.
I'm just going to give you a citation if you let me search the car.
Mr. Rosenberg: I think under Bumpers v. North Carolina, that would be a legitimate reason for questioning the voluntariness of that consent because that would be... just be an acquiescence and a claim of lawful authority by the police officer.
I would question...
Justice Kennedy: Well, if the officer had the right to take him into custody, why couldn't he give him that choice?
Mr. Rosenberg: Well, I think that would... that would simply be an issue of whether the consent would be... would be valid.
I think consent can be coerced by threats to do lawful things as well as unlawful things.
And I think that was basically the... the holding in Bumpers v. North Carolina.
Justice Souter: Mr. Rosenberg, you... you pointed out that historically the distinction seems to have been recognized between searches incident to arrest and the consequences of a mere citation.
What is it about the arrest, assuming that a valid arrest is made, that justifies the search that doesn't justify it in the non-custodial situation?
Mr. Rosenberg: I would like to answer that question by quoting from United States v. Robinson, 414 U.S. at 234, note 5.
The danger to the police officer flows from the fact of arrest and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.
And I would elaborate further that a traffic citation is a very common occurrence in this country.
In Iowa alone, we average 400,000-plus a year.
Citizens are not in great fear when they're pulled over for a traffic violation.
They know it will be a brief encounter.
They know that they will soon be free to go.
They know they will receive a summons.
They can go to court to contest it, but most elect to pay a fine and plead guilty.
This is not a provocative encounter.
Whereas an arrest presents other unique threats to the officer's safety.
The person may have items in his car that if... if were uncovered, he might go to a prison for a long period of time, including life.
And there is going to be an extreme danger trying to bring this person under control if he has a lot to lose by being brought under control.
Justice Scalia: Of course, that's just one of the justifications that it would express.
The other one is to obtain... obtain necessary evidence.
Isn't... isn't that another justification that's been alluded to besides protecting the... the officer?
Mr. Rosenberg: Yes, that is...
Justice Scalia: I mean, if he's arresting somebody outside the car, why should he be able to search the inside of the car?
Just keep the guy outside the car.
He can search the inside of the car in the case of an arrest to obtain necessary evidence...
Mr. Rosenberg: That's correct.
Justice Scalia: Could I ask you, in your... in your researches on the common law, did the common law draw a distinction between a... what you've called a custodial arrest and a non-custodial arrest?
Would the common law have considered the... the stop of the car an arrest?
I mean, the policeman is telling you, go no further.
If you go further, you know, you will be in violation of the of the law, and I will use force to stop you.
Is that... would the common law consider that an arrest?
Mr. Rosenberg: Justice Scalia, I am not aware that the common law had any other means to prosecute a criminal offense... to commence the prosecution of a criminal offense outside of arrest.
But I also believe with the proliferation of a lot of minor misdemeanor offenses in this country, that the citation came into vogue as a more reasonable manner in which to... to prosecute a criminal offense.
Justice Scalia: I think you mistook my question.
I guess I'm really asking whether in the common law all seizures of the person were not considered arrests.
Is it clear that there were two categories of seizures of the person, one of which was just, you know, a temporary traffic stop and another one was what you call a full custodial arrest?
Mr. Rosenberg: I... I do not know that the common law distinguished between a... a simple seizure of the person and an arrest.
I think that a lot...
Justice Scalia: Well, if that's the case, then... then... and if it didn't, then the long history of... of allowing searches of this sort only in connection with an arrest could be a long history of allowing searches in connection with a traffic stop, whether you give a citation or not.
Mr. Rosenberg: The only common law history that I'm aware of is that which was referred to in United States v. Robinson where the Court indicated that the common law authority or historical sources in this respect were scarce.
And the Court...
Justice O'Connor: Well, I guess we didn't have a lot of cars and trucks back in the 1600's and the 1700's.
Unidentified Justice: [Laughter]
Mr. Rosenberg: We didn't have any.
Chief Justice Rehnquist: If we move forward from the common law to cases decided by this Court, Berkemer against McCarty you cite in your brief I guess for the proposition that a traffic stop is not an arrest.
Mr. Rosenberg: That's correct, but I believe later this Court clarified its decision in Berkemer and said if the officer had told this individual that he was under arrest at the inception of this particular encounter, then the Court would have considered that an arrest.
Chief Justice Rehnquist: That was a clarification?
Mr. Rosenberg: Oh, it was?
Chief Justice Rehnquist: I assume...
Mr. Rosenberg: I don't know if it was a clarification or not.
I don't... I'm not going to venture a guess at that.
There's another reason that searches incident to arrest differ from searches incident to citation, and that is in a lot of Fourth Amendment areas, a larger intrusion will subsume a smaller intrusion or, so to speak, lesser included intrusions.
And once the person has been taken into custody for arrest, a lot of rights are lost, a lot of things can be done which in and of themselves would have been intrusive or in violation of the Fourth Amendment, but when subsumed by the greater intrusion are no longer the case.
In a situation where a citation is issued, there is no law... there is no physical intrusion of the sort that this Court has ever found allows lesser included...
Justice Souter: That was Justice Powell's argument in... in Robinson.
I'm not sure that I understand it because if there is a right to make the greater intrusion, why isn't there the right to make the lesser... his argument, as I understand it, was just as you have said, that once you've arrested, the search is just kind of de minimis.
I mean, there's nothing much left for him to object to when his body is subject to custody.
And that's true.
But I don't know whether it really goes to the issue because if there is a right to make the greater intrusion, why isn't there a right to make the lesser intrusion?
Mr. Rosenberg: Well, because the... the right to make the greater intrusion, for purposes of the Fourth Amendment, is a hypothetical situation.
No arrest was made and that is the key point in this case in terms of the Fourth Amendment.
Justice Souter: No, but you... maybe I misunderstand you.
I thought you had conceded that an arrest could have been made here.
It would have been a lawful arrest.
Mr. Rosenberg: I have conceded that an arrest could have been made... made for the traffic offense, but an arrest wasn't made.
A citation was issued.
Justice Souter: No, but if... but my question is, if the... if the right to commit to the greater intrusion, the arrest, is assumed, why doesn't it follow that there is a right to commit to the lesser intrusion, which is the mere search?
Mr. Rosenberg: Because... and I would refer to United States... Whren v. the United States, that the Fourth Amendment is concerned with the actual events and not those events which could have happened or normally would have happened.
It's sort of the reverse argument that was made in Whren.
There the defendants tried to rely on the fact that normally, police... these vice officers would not have made this arrest, and therefore, they should be the beneficiaries of this hypothetical situation.
The other side of the coin is that the State should not be allowed to be the beneficiary of an intrusion in lesser... in lesser included smaller intrusions that in fact never occurred.
Justice Ginsburg: Mr. Rosenberg, in your... you made some rather graphic comparisons in... in... in your briefing in some of the others that if you say every citation can trigger a... a full custodial search, then the jaywalker is in danger, the person who's walking a dog without a leash.
I mean, were these examples brought up to the Iowa Supreme Court, to say that every citation for every petty offense can yield a search that will turn up something that has nothing to do with the offense?
Mr. Rosenberg: I don't believe that those specific examples were brought up in briefing to the Iowa Supreme Court.
Justice Ginsburg: Because there is no limit in Iowa, as I understand it.
Everything... every traffic violation... you don't signal and you can be arrested.
Mr. Rosenberg: Every traffic offense in Iowa is an arrestable offense, and therefore every traffic offense in Iowa, for which somebody is cited, is the basis for a full search of their person and vehicle...
Chief Justice Rehnquist: Do you count driving under the influence as a traffic offense?
Mr. Rosenberg: No.
Chief Justice Rehnquist: Because there, it seems to me, the officer might have a reason akin to those given in Robinson for wanting to search for more evidence, but it seems to me also that with speeding, the offense is complete in a sense when the car is brought to a stop, and you're not going to find anything inside the car that is going to help you prove the person has been speeding.
Mr. Rosenberg: But most traffic citations are... produce no need to look for evidence.
But I would like to say this, if there is such a citation that would necessarily involve evidence or a need to look for evidence, then that particular search could be governed under the Carroll decision, simply that the officer has probable cause to believe that an offense has occurred and probable cause that there may be evidence in the car.
And that search could be justified under existing doctrine.
But your typical traffic offense does not involve any evidence other than what the officer has acquired already.
Justice Scalia: And if I understand it correctly, it's not the State law that... that... that you can search whenever you issue a citation.
It's only the State law that you can search whenever you issue a citation instead of arresting when there is an offense that... that permits arrest.
Mr. Rosenberg: That's correct.
But all offenses...
Justice Scalia: So, walking a dog, failing to curb your dog and some of those other examples really... would they be a problem under Iowa law?
Mr. Rosenberg: No.
Those are arrestable offenses too.
Justice Scalia: They are arrestable for failure to curb your dog?
Mr. Rosenberg: Yes.
Justice Breyer: Wow.
Mr. Rosenberg: Because the Iowa Supreme Court recently...
Justice Scalia: They're tough out there...
Unidentified Justice: [Laughter]
Mr. Rosenberg: Yes, they are.
And that's why we're here.
This law applies to municipal offenses the Iowa Supreme Court has held recently in State v....
Chief Justice Rehnquist: And it goes up too, does it not?
At least the... the ability to substitute a citation for an arrest goes up to second degree burglary.
Mr. Rosenberg: Yes.
Chief Justice Rehnquist: There I suppose there might be a reason to search that you wouldn't have in the case of speeding.
Mr. Rosenberg: Absolutely, but once again those searches would be justified under existing reasonableness... reasonable searches out of this Court, Carroll, or any of the other...
Justice Kennedy: Well, would you say that if you're cited for second degree burglary and not arrested that there is a right to search, let's say, the vehicle if the vehicle was stopped and the citation is issued for second degree burglary?
Mr. Rosenberg: I would think so because, you know, that offense would likely involve the possession of recently stolen property.
Justice Kennedy: Well, let's assume that there's no... no probable cause to... to believe that there's burglary tools or the fruits of a crime in the car.
Could the officer incident to the citation for burglary search the car without more?
I'm surprised you're conceding that.
Mr. Rosenberg: No, no, no.
Justice Scalia: Your answer is no.
Mr. Rosenberg: I have to say no.
And that... that would be because the citation itself does not give rise to the justification.
Chief Justice Rehnquist: Well, it gives rise to one of the justifications advanced in Robinson, doesn't it, the... the need to search for evidence?
Mr. Rosenberg: Yes.
Justice Stevens: Plus the fact I suppose to issue the citation, they had to have probable cause, and if they just got probable cause right at the moment, that would include probable cause to search the vehicle I suppose.
Mr. Rosenberg: Well, the probable cause would be needed for both the arrest and the search, and generally for a traffic citation, it will only supply the... the justification for the arrest.
Justice Scalia: The need for... for... for searching for evidence justification that the Chief Justice referred to would be... would be taken care of by the probable cause, by the presence of probable cause.
If there is indeed need to search for evidence, you have probable cause and you don't have to rely on the arrestability of the offense.
Justice Stevens: Right?
Mr. Rosenberg: Right.
Justice Scalia: And so, the only justification we're talking about is the need to keep yourself safe.
I don't think you should issue citations to burglars anyway.
Do you know if they've ever done that?
Mr. Rosenberg: I'm not aware that they do it.
It's a theoretical position.
Justice Scalia: Writing... do they ever just give them a warning?
Unidentified Justice: [Laughter]
Mr. Rosenberg: If there are no further questions, I'd like to reserve my remaining time for rebuttal.
Argument of Bridget A. Chambers
Chief Justice Rehnquist: Very well, Mr. Rosenberg.
Ms. Chambers, we'll hear from you.
Mr. Chambers: Mr. Chief Justice, and may it please the Court:
In 1983, Iowa passed a statute which allowed officers to use citations for almost any offense.
At the same time, the Iowa legislature authorized... stated that... that when a citation is issued, officers may still search and make any otherwise lawful search.
Patrick Knowles challenges that statute as it applies to the search of his car made after he was issued a speeding ticket.
The concerns raised by petitioner in this case are met by the fact that the Iowa statute requires probable cause to arrest in every case where a search is made.
It's probable cause to arrest which makes it both to arrest and issuance of a citation reasonable under the Fourth Amendment.
It's probable cause to arrest...
Justice Stevens: May I just be sure that you agree with what your opponent said on the scope of the citation?
This includes something like jaywalking?
Mr. Chambers: In Iowa, almost every ordinance...
Justice Stevens: And therefore your... so, it does...
Mr. Chambers: It does, generally, yes.
Justice Stevens: Because you could arrest him for jaywalking.
Mr. Chambers: Correct.
Justice Stevens: And therefore, if there... if somebody jaywalks, the police could search him.
Mr. Chambers: Correct, because they could make a custodial arrest and search incident thereto.
Justice Scalia: And that would include a strip search.
I mean, when you're arrested, you could be subject to strip search.
Mr. Chambers: No.
Justice Scalia: A strip search for jaywalking?
Mr. Chambers: No.
In Iowa, there clearly could not be a strip search for two reasons.
First of all, Iowa has a specific statute that deals with that, and it is 805.3 I believe... 804.3, and that statute specifically says that for scheduled traffic violations or simple misdemeanors, which would include ordinance violations...
Justice Stevens: But your argument is there would be no constitutional objection to a strip search for a traffic citation.
Mr. Chambers: No.
That's the second prong of our answer, and clearly under this Court's prior decisions in the context of search incident to custodial arrests, a strip search can only be made under certain very carefully restricted circumstances which I cannot conceive could exist in the context of a jaywalking or... or other city ordinance violation.
It's probable cause to arrest which also prevents random suspicion-less searches which were a major part of the petitioner's brief in this case.
Justice Kennedy: Do you acknowledge that the rule you're asking us to confirm today, the Iowa opinion, is an extension of our previous cases?
Mr. Chambers: The... it's the State's position that in interpreting Iowa Code section 805.1(4), the Iowa court simply says that statute authorizes whatever the Fourth Amendment authorizes and then went on to decide that the Fourth Amendment does authorize search incident to citation.
Justice Souter: Well...
Justice Kennedy: Well, is this an extension of our prior cases?
Mr. Chambers: We think it's... it's certainly an issue that hasn't been decided before.
It's the State's position that it's not an extension of your prior opinions because such searches always require probable cause to arrest and...
Justice O'Connor: Well, but Cupp v. Murphy certainly didn't speak in terms of a broad right to conduct searches even with the presence of probable cause.
Mr. Chambers: Right.
It's the State's position that you must have both probable cause to arrest and initiation of a prosecution in some manner.
That we believe is consistent with the Court's prior opinions.
In Cupp v. Murphy, the difference is that in that situation, although there was probable cause to arrest, there was not any kind of an initiation of a prosecution.
There were no charges filed whether custodial arrest or by citation.
No prosecution had been initiated.
So, given that particular circumstance, the court simply said the exigencies that exist in this case, Cupp, do not give rise to the kinds of concerns that arise when a prosecution is initiated, that is, escape or destruction of evidence and that because there is no prosecution...
Justice O'Connor: Well, your... there's no reason to expect evidence to be produced by virtue of this search of the traffic violation, is there?
Mr. Chambers: The State does not concede that point, Your Honor...
Justice O'Connor: Really.
Mr. Chambers: for a couple of reasons.
First of all, if the context is speeding, certainly we wouldn't be looking for the kinds of broad ranging evidence that we might look for in a burglary case, for example.
But certainly identity is always at issue in any case, and that's...
Justice Souter: How can you say that at the point that the decision is made to issue the citation?
I mean, the... at that point, the individual has presumably produced a driver's license or whatever identification is.
If that isn't so, the officer isn't going to let him go with a citation.
Mr. Chambers: It's certainly true that the... the person will likely have produced some kind of identification.
Justice Souter: Well, would the officer let him go with a... with a citation if he didn't have any identification?
Justice O'Connor: Surely not.
Justice Souter: He wouldn't know who to write in the citation.
Mr. Chambers: Right, likely not.
Two things are true then, Your Honor.
If the officer can't search... if the officer has any doubts about whether that... that identification is valid or if the person can't produce acceptable identification, then the officer will likely make a custodial arrest when he might not if he could search.
Let me give you an example.
It's not at all uncommon for an officer to stop someone, and particularly in Iowa where we're dealing with rural communities, small population, to stop someone and have that person say, I have a license.
I simply don't have it with me.
My name is Bob Jones.
I live at 308 Elm Street.
The officer may well know that that information is true and feel comfortable writing a citation, and because they're comfortable with the identification, the officer can... can make the necessary records checks to confirm that the license is valid.
On the other hand, it certainly isn't uncommon for suspects to misidentify themselves or present false ID's, and in that situation, the officer who has some doubts about that identification either has to issue a citation not knowing if it's being issued in the right name, or has to make a custodial arrest.
And it simply...
Justice Souter: Well, I think you're... I don't know whether that's... I'm from a small town too.
Unidentified Justice: [Laughter]
Justice Souter: And I... I'm not ready I think to concede that your example is much of a real world example, but assuming... assuming it is, wouldn't it make more sense for us simply to say, in order to keep our kind of... not only our constitutional categories but our constitutional protections intact, to say that in that case it's better for the officer to make the custodial arrest and to justify any search on that basis than to consider broadening the scope of the so-called search incident exception to include a... a citation for... for any kind of misdemeanor or traffic violation even?
Wouldn't it make more sense to say, look, if that's your problem, go ahead and arrest him and then we all know where we stand?
Mr. Chambers: Well, of course, the State's second response to the issue of whether there's evidence in a... in a speeding case, for example, is that in Gustafson and Robinson, the Court said because such a search is reasonable, we don't look in a particular case to see whether there would, in fact, be evidence or weapons to search for...
Justice Souter: Okay, but that goes back to another one of the justifications in Robinson.
One was the evidentiary justification that you referred to and the other one, which we've already heard about this morning, is the justification of protecting the officer and in fact making good on the arrest that... that is made.
I don't see how that can apply here because, as I understand the facts, the point at which the decision to cite is announced is, in effect, the end of the encounter.
The officer says, I'm not going to arrest you.
I'm going to give you this citation instead.
The fear for police safety is, I would suppose, at a minimum in that case, whereas it is at a maximum when an arrest is made.
So, why... why isn't Robinson against you?
Mr. Chambers: Well, certainly one would normally expect that a search based on a concern for officer safety might be made at the initiation of a stop, but I would point out a couple of things.
Justice Souter: But it's... but it's not.
I mean, we're talking about... I presume we're talking about the case that we've got here in which there isn't any search until the encounter to the... to the point of issuing the citation is over and then the officer says, and by the way, I'm going to search your car.
Mr. Chambers: Correct.
It's... it's the State's position that officers have to be allowed to make the decision for themselves what best serves their safety.
In this case, the officer stopped Knowles, kept him in his car while the officer wrote the citation.
The officer called for backup and at the point at which a backup officer arrived, then the officer issued the citation and made the search.
So, one can infer that the officer kept Knowles in a place where he could keep him at least partially under observation until an officer came to serve as backup and that he made...
Justice Souter: Well, can infer that the officer always intended to make the search because he was relying on State law and he realized that he might very well want some extra protection while he was searching a car.
But that sort of begs the question here because the... the... the officer protection justification in Robinson is a justification for protecting the officer when he has an individual in the... in arrest... in custody following an arrest.
And that by definition is what we don't have here.
So, it seems to me that whether your argument ultimately prevails or not, we would certainly have to extend Robinson in order to see it your way here.
Mr. Chambers: If by extend Robinson, the Court means apply it to a situation where the officer subjectively did not fear the suspect, then the State does not agree with that characterization because I think the Court noted in Robinson...
Chief Justice Rehnquist: I was going to... go ahead.
Mr. Chambers: I think the Court noted in Robinson that that officer did not have a subjective fear of the defendant.
Justice Souter: Well, but that's because...
Mr. Chambers: Certainly...
Justice Souter: Robinson said we're going to establish general rules.
Mr. Chambers: Right.
Justice Breyer: Okay.
Mr. Chambers: And it's the State's position that similarly a general rule should be established in this context.
Chief Justice Rehnquist: But... but in a way you... you would be going beyond Robinson here because you're saying that there's an authority to search that would not be the same basis as was set forth in Robinson.
When you have a traffic stop, you're not going to find any additional evidence of speeding by searching either the person or their car, and the safety situation is... is simply not as great when you issue a citation as it is when you have a formal arrest.
Mr. Chambers: We certainly agree that although there are studies that say that... that show that officers are not objectively able to accurately predict which offenders are likely to be dangerous and while there are... are statistics that indicate that traffic offenders do pose a threat, certainly common sense would tell us that on a continuum of danger, in most cases most offenders are less likely to be dangerous...
Chief Justice Rehnquist: And the officer has it his power under Iowa law to obviate at least a part of that danger by making a custodial arrest.
Mr. Chambers: And... and that, Your Honor, is why we... we make the statement that it's not really an extension of Robinson or Gustafson because in every case where the officer can search under the Iowa statute, the officer can already make a custodial arrest...
Justice O'Connor: How many other States have a policy like Iowa's?
I... I haven't been able to uncover more than perhaps Arkansas.
Mr. Chambers: There are a handful of States who either by rule, statute, or judicial decision have a practice similar to Iowa's.
In Vermont, the State v. Greenslit case which is cited in the State's brief.
Florida issued a decision in State v. McCray, 626 S. 2d 1017, Arkansas in the State v. Earl decision, 970 S.W. 2d 789, and Colorado in the...
Justice Ginsburg: Are these all States that say that any... all these traffic offenses... that all of those are subject to full custodial arrest?
Mr. Chambers: Colorado makes a bit of a distinction in that there they were dealing with a statute... an offense for which the statute specifically prohibited arrest, and so some of...
Justice Ginsburg: I'm asking you about how many are like Iowa because, frankly, it startled to me to think that... that a police officer could make a full custodial arrest for the pettiest infraction.
Mr. Chambers: I'm sorry.
I misunderstood the question.
All... most States do and depending on who counts, it varies between 25 and 30.
My count came up with about 27 who allow it in virtually every circumstance.
Almost all 50 States allow it in certain circumstances.
Justice Stevens: May I ask another question about the routine procedure that police follow?
Is it not correct that normally, when a custodial arrest is made, the officers have a procedure they follow which would include a rather complete search to be sure there are no weapons around, whereas normally in the citation situation, unless they go ahead and arrest, they do not conduct a search?
Mr. Chambers: That's normal...
Justice Stevens: In the States except for Iowa.
But now, with Iowa's statute on the books, I suppose in Iowa now the police are routinely making searches in these situations?
Mr. Chambers: No.
Actually, Your Honor, although the statute went into effect in 1983, this practice is far from routine for a couple of reasons.
I think one could infer that one of the reasons is that until now the constitutionality of those searches were some... were unsettled and cautious prosecutors were likely advising cautious law enforcement officials to exercise a great deal of care in this area.
Justice Stevens: So that now that... if... if we affirm the Iowa court, presumably the practice would become much more prevalent.
Mr. Chambers: Well, certainly as one would expect prior to Belton, there were probably few auto searches under that... that doctrine.
Prior to the decision in this case, certainly officers are exercising caution.
Justice Kennedy: Doesn't that also indicate that the Iowa officers do not consider it, in the usual case, necessary to search in order to protect the officer?
Mr. Chambers: That's... the second ground is that I think that officers do exercise a great deal of discretion, and... and are careful about when they use this.
Justice Kennedy: But... but you're asking us to have... have a rule which presumes that there's a danger to the officer.
I suppose that's the basis for your rule.
Mr. Chambers: It's certainly one of the two...
Justice Kennedy: But that presumption doesn't accord with the facts even as Iowa officers now understand.
Mr. Chambers: Well, certainly just as the law currently allows custodial arrest and search in every situation, which is unquestionably constitutional and conceded by... by Knowles, and officers currently are not searching in all those cases, they would... they would behave presumably similarly under search incident to citation.
The... the fact that officers exercise discretion certainly doesn't defeat the rule.
The rule presumes that it's reasonable under the Fourth Amendment because of concerns with preservation of error and officer safety, and if officers subjectively choose not to go to the limits of their power, the State believes that that's a proper exercise of discretion.
Justice Ginsburg: Ms. Chambers, there's another side to this too because the person who's apprehended, if in fact there's arrest, there's a warning light that will go off because that person will get a Miranda warning.
But here... your argument is very appealing when you say, if the greater, then the lesser; if the full arrest, then the citation.
But the other part of it is the defendant who gets a traffic ticket doesn't have any idea that that's the kind of situation he faces, where if there's a full custodial arrest, he must be given his Miranda warnings.
So, the... it's a pretty good situation for the police.
Mr. Chambers: Well, of course, if a custodial arrest, Miranda would only have to be made if the officer wished to interrogate.
So, it's not necessarily true that it would be given in every case.
But if the question is, does this allow officers to search without providing those protections provided by arrest, of course, the answer is yes.
Justice Ginsburg: It does seem an enormous amount of authority to put into the hands of the police.
As you said, you have to leave it to the judgment and the police will exercise good judgment.
But that's... we do have constitutional checks because we're not always so sure that... that the police will exercise good judgment.
Mr. Chambers: But taking this back into the... a practical example, the officer in the Knowles case could already have made a custodial arrest and searched, and unless the officer wished to interrogate Mr. Knowles, he would not have been required to give a Miranda.
Similarly, an officer could arrest and, under Iowa law, then search and subsequently release the person on citation which is in fact the... the practice advocated by the American Bar Association and the American Law Institute.
All of those circumstances are functionally identical from the point of view of a suspect.
It... as a practical matter, it matters little to a suspect whether the officer utters the words, you're under arrest, before he searches and releases.
For those reasons, although we recognize that... that... that one could see this as skirting Miranda, for example, really in a functional manner it is not.
Justice Scalia: But it's a lot of trouble not just for the... not just for the suspect but for the officer and for the system to arrest somebody.
Mr. Chambers: It certainly is.
Justice Scalia: And it's a deterrent against conducting... conducting searches where there is genuinely no reason to conduct a search.
Yes, you can do it if you arrest, but you... you have to do the paperwork.
Mr. Chambers: That would...
Justice Scalia: Police don't like to do paperwork I gather from watching television movies.
Unidentified Justice: [Laughter]
Mr. Chambers: We will certainly concede the latter.
Chief Justice Rehnquist: They don't like to do...
Mr. Chambers: That would be true if it were not for the fact that under Iowa law officers can arrest, search, and then subsequently release on citation.
Because they can promptly release on citation, those... those practical limits that might... that might arise don't...
Justice Kennedy: Excuse me.
Justice Scalia: They can arrest, search, and then say never mind the arrest?
Mr. Chambers: Yes.
Justice Scalia: Wow.
Unidentified Justice: [Laughter]
Mr. Chambers: And in fact, the form that they would use...
Justice Scalia: I really only did this arrest so I could search.
I've done the search.
Here's a citation.
Mr. Chambers: Well, that's...
Justice Scalia: Let's forget about it.
Mr. Chambers: That's certainly one take.
Of course, the State's position is that that releasing on citation allows the officer to... to do those things which he finds necessary to confirm the identity, investigate the crime, obtain any evidence necessary, and then releases the suspect, minimizing the amount of detention required.
Again, I would point out that's the position that the American Bar Association and the American Law Institute in fact advocate.
The position advanced by Knowles is... is really one that is counter-effective in terms of the overall protections of the Fourth Amendment.
He's asking the Court to require that a custodial arrest be made in any case where... where the officer wishes to search to protect his safety, to preserve evidence, or both.
Chief Justice Rehnquist: That's not entirely true, I don't think, Ms. Chambers.
I think if there were reasons simply by looking at the person in the car to... to feel that he was armed or anything, I think you'd have the authority to search under Terry without needing to rely on the custodial arrest doctrine.
Mr. Chambers: But certainly there would not... that would not meet the needs to preserve evidence.
Yes, there are some situations where the officer could search under Terry, but certainly not all.
Chief Justice Rehnquist: And what evidence do you need to... to search for when you've stopped a person for speeding?
Mr. Chambers: Again, identity, but there also might be... speeding is... is probably at the lowest end of the continuum.
Chief Justice Rehnquist: If you'd come here on second burglary, it might have been different.
Mr. Chambers: Certainly, and of course...
Justice Kennedy: Actually in this case, he knew the defendant.
Mr. Chambers: He did.
Justice Kennedy: He knew that he was Knowles when he stopped... before he stopped him.
Mr. Chambers: He did, and certainly in this case the officer made no bones about the fact that he suspected that there were drugs.
He searched for drugs and he found drugs.
But again, any rule enunciated by this Court will apply not only to this case but by analogy to... to every case.
Chief Justice Rehnquist: And under Whren, we said there's no such thing as a pretextual search.
The fact that he thought there might be drugs doesn't counsel against the reasonableness of the arrest.
Mr. Chambers: Yes, and under Robinson and Gustafson, the Court also said that the fact that the officer didn't believe that he would, in fact, find evidence or a weapon did not defeat the need for the search, the search being reasonable under the Fourth Amendment.
That's the end of the... that's the end of the question and the officer may search.
And we believe the search here is reasonable for a couple of reasons.
First of all, as I've said, every search incident to citation in Iowa requires probable cause and initiation of a prosecution.
So... in some manner, here by citation.
So, by definition, the officer has authority and a right to make the arrest.
In those circumstances...
Justice Stevens: May I ask you about your statement, requires initiation of prosecution?
I know I've been stopped and the officer... well, he gave me a lecture and I had a warning.
And sometimes they may stop, intending initially to give a citation, and then they figure it's a... it's a... some unusual excuse.
The speedometer wasn't working or something, and... and they decide later to just give a warning.
In Iowa, if they stop, must they give a citation?
Mr. Chambers: No.
They may give warnings.
Justice Stevens: They could give a warning.
Mr. Chambers: Yes.
Justice Stevens: Could they give a warning after initially arresting the person?
Mr. Chambers: Yes, if... if by arrest, you mean saying, you're under arrest.
Justice Kennedy: Yes.
Mr. Chambers: Or certainly they...
Justice Stevens: They could... so, in other words, they could arrest, search, find nothing, and then say, well, I'll just give you a warning.
Mr. Chambers: Yes.
Justice Stevens: They could.
Mr. Chambers: The State, however, does not believe that the Court needs to go as far as deciding whether search could be conducted where only a... only a warning is issued.
Justice Kennedy: Could... could they arrest... under Justice Stevens' hypothetical, could they arrest, search, then give a warning, if the arrest were simply a pretext for a search and they had no intention at the time of arrest of doing anything other but giving a warning?
Mr. Chambers: The...
Justice Kennedy: Absent finding something.
Mr. Chambers: Did you assume arrest?
Did I hear...
Justice Kennedy: Could the... could the... could the officer arrest, having the intention at all times simply of giving a warning?
Could he arrest simply in order to effect the search?
Mr. Chambers: Of course, that's not this case, and it raises I think the question of pretext.
Justice Kennedy: Well, but you were the one that said we have the right for a lot...
Mr. Chambers: Right.
I think... I think they could do that.
I assume defendants would raise the issue of pretext.
I think Whren likely would answer that question.
Justice Kennedy: Well, it's not... it's not... it's not a pretext.
It's... it's... it's an instance in which the officer's objective actions really are... are... do not disclose his true purpose.
Mr. Chambers: I think he could do that, Your Honor.
Again, we don't think you need to go that far, but here's why I think you could.
I think the underlying premise, at least as I read Whren, was that the officers in that case followed and subsequently stopped the car because they thought they would find drugs.
And... and the issue there, of course, was pretext.
And I think... I think that what the Court is getting at is if the officer really all along wanted to search, was that arrest pretextual and if so, is that improper.
And it's... under Whren it would be the State's position it would not be proper.
Now, it may not be good public policy and it may raise some other concerns, but... but those wouldn't be answered by the Fourth Amendment.
But again, that's... that's not what happened in this case and the rule that the State is proposing would require initiation of a prosecution either by citation or by custodial arrest, leaving for another day the hypothetical posed by the Court.
Justice Stevens: I don't understand why it would require that.
You say it would require initiation of prosecution, but how can that be so if the officer would have authority to make the arrest because the guy was speeding, and then he... he makes the search, and he says, I don't think I want to write up a ticket.
I'll just give him a warning.
Justice Kennedy: What would prevent him from doing that?
Mr. Chambers: There is an argument to be made... and it may be a good one... that probable cause to arrest alone would be enough, but the State has recognized the Court's concerns in Robinson, Gustafson, and other cases that the... the scope of the search and the immediate need to search is related to custody or an equivalent of custody.
So, the reason we... the reason we are proposing a rule that would require initiation of a prosecution is that it's our strong belief that when a prosecution is initiated, whether that's by custodial arrest or by issuance of a citation, those... the same concerns with officer safety and preservation of error arise.
Justice Stevens: Yes, and I know you say that, that it would... that's the rule you propose, but it seems to me that if we adopted the rule you propose, there would be nothing to prevent the officer from conducting all the searches he wants to and simply giving warnings whenever he finds nothing and going ahead with the prosecution whenever he finds something.
That could happen under your rule.
Mr. Chambers: It could happen, but let me remind the Court that it could also happen with custodial arrest...
Justice O'Connor: Yes.
Mr. Chambers: because that is the equivalent of arresting and then saying, eh, we don't really want to proceed with this prosecution.
We're dismissing the charge.
Justice Ginsburg: There was a point... there was a point, Ms. Chambers, made in response to that.
And you said, yes, it's so, but maybe the good citizens of Iowa would be a little upset if they get arrested every time they forget to signal when they're turning.
Mr. Chambers: We believe that like the citizenry would be upset if custodial arrest were made in every case, they would also be upset if... if the right to search were abused.
Justice Kennedy: Well, you... you... the usual rule is there can be a search incident to an arrest.
You want to turn it around and have an arrest incident to a search.
And it seems to me that that's an abuse of authority.
Mr. Chambers: Well...
Justice Kennedy: If the officer arrests not intending really to arrest, that's an abuse of authority.
You're not really proposing that this could happen, are you?
Mr. Chambers: We're certainly not advocating that that should happen, and we're certainly not... we're not encouraging that.
Given the hypothetical, we think it could conceivably happen, and... and for the same reasons that arrest followed by dismissal of the charges wouldn't violate the Fourth Amendment, likely that would not.
But let me go back to the... to the question posed by... by... by the Court and that is, would... would the citizenry become upset?
Certainly if custodial arrest is abused, it's likely that the legislative process would lead to curbs on... for which offenses custodial arrests could be made.
Similarly, if... if officers abuse the right to search incident to citation, the legislature will curb that authority, and we not only believe that that would happen if abuse has occurred, but we think it should happen, that that is the essence of the...
Justice Stevens: But the answer to that is that officers are going to use some judgment and they're only going to use this power when they think, well, I'm not sure this fellow doesn't look just a little bit suspicious.
He was a little nasty in my conversation.
I mean, they could have the authority without using it in every case.
Mr. Chambers: That's right, just as they currently don't always exercise the custodial arrest.
But again, while that could be used in a discriminatory or abusive manner, one, there's no evidence that that's happening in Iowa since 1983, and secondly, if... unless it violates the Fourth Amendment, that kind of discriminatory or abusive police procedure, while objectionable...
Justice Stevens: Or better yet, they might save it for out-of-state motorists.
Unidentified Justice: [Laughter]
Mr. Chambers: They might but certainly in this case, the person arrested was a white man who had been born in Newton, so there is no evidence that it is being abused.
But, of course, if it were abused, it certainly would not be something the State would advocate.
If it were abused, the legislative process or police regulations or certainly advice of counsel are ways that those kinds of abuses can be curbed.
And certainly if it's used in a discriminatory manner, the Equal Protection Clause provides the remedy there, as this Court noted in Whren.
I'd like to point out just a couple of other things and that is that one of the things that Knowles' proposal would require is for this Court to frequently get into the issue of the officer's subjective intent, an examination that this Court has rejected time after time after again... time after time and most recently in Whren.
The reason that we'd have to get into that is this.
Some of the examples posed by the Court dealt with when the officer made the decision to search, and it would be an open question, what happens if the officer makes the search and then doesn't issue the citation until later or then makes the custodial arrest subsequently?
Do we have to determine whether the officer intended to arrest when the search was made?
Do we have to determine when that decision was made?
Those kinds of subjective evaluations are nearly impossible...
Chief Justice Rehnquist: But arrest is an objective thing.
Mr. Chambers: It is, but that would, of course, require the Court to set down a rule that arrest would be required in all of these cases rather than the less intrusive alternative of issuing a citation.
Rebuttal of Paul Rosenberg
Chief Justice Rehnquist: Thank you, Ms. Chambers.
Mr. Rosenberg, you have 2 minutes remaining.
Mr. Rosenberg: Thank you, Your Honor.
I would just like to make a few comments.
Ms. Chambers mentioned that the officer suspected Mr. Knowles had drugs.
The officer, although he may have suspected, testified at the suppression hearing that he had no cause, no suspicion, that Mr. Knowles had any drugs on him on this occasion, and that is in the appendix.
The second response I'd like to make regarding the enforcement of this statute, although the statute was passed in 1983, it wasn't until about 1990 or thereafter that the Iowa Supreme Court gave it its construction and anybody had any idea that this was what it meant.
And it hasn't been enforced much because a lot of county attorneys have been advising the police officers not to rely on this as their sole basis for a search pending their belief in the... that it may be overturned.
And finally, in response to Justice Ginsburg's question about the citizens of Iowa not putting up with this, over 400,000 citizens in Iowa a year get traffic tickets.
If this policy were uniformly and nondiscriminatorily enforced, it... the right to arrest would be ended.
The legislature would end it.
I have confidence in that.
This policy can only be enforced... the statute can only be enforced selectively, otherwise it would politically not be stood for by the citizens of Iowa, and that in fact is one of the dangers of a statute like this.
Thank you very much.
I'll waive the additional time.
Chief Justice Rehnquist: Thank you, Mr. Rosenberg.
The case is submitted.
The honorable court is now adjourned until tomorrow at ten o'clock.