MR. JUSTICE WHITE delivered the opinion of the Court.
This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent.
The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day
Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent.
A divided panel of the Court of Appeals for the Ninth Circuit reversed, 504 F.2d 849 (1974), ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. 420 U.S. 924 (1975).
A major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. Brown v. Illinois, 422 U.S. 590 (1975). However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue.
Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant.
By regulation, 39 CFR § 232.5 (a) (3) (1975), and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated § 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.
Under the Fourth Amendment, the people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause . . . ." Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so.
Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is `reasonable,' " "[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, 332 U.S. 581, 585 (1948). Moreover, there is nothing in the Court's prior cases indicating that under the
"The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony . . . ." Carroll v. United States, 267 U.S. 132, 156 (1925). In Henry v. United States, 361 U.S. 98 (1959), the Court dealt with an FBI agent's warrantless arrest under 18 U. S. C. § 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard. . . ." 361 U. S., at 100. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, 362 U.S. 217, 232 (1960), the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, 358 U.S. 307 (1959), was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful . . . ." Id., at 310. Ker v. California, 374 U.S. 23, 34-35 (1963) (opinion of Clark, J.), reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause . . ." and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely
The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant 22 Mich. L. Rev. 541, 547-550, 686-688 (1924);
In Rohan v. Sawin, 59 Mass. 281 (1850), a false-arrest case, the Supreme Judicial Court of Massachusetts held that the common-law rule obtained in that State. Given probable cause to arrest, "[t]he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases." Id., at 284. In reaching this judgment the court observed:
Because the common-law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that in 1792 Congress invested United States marshals and their deputies with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to arrest for a felony without a warrant.
The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears
Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary.
Because our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error.
We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer
In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case.
In consequence, we reverse the judgment of the Court of Appeals.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. JUSTICE POWELL, concurring.
Although I concur in the opinion of the Court, I write to express additional views. I note at the outset that the case could be disposed of on the ground that respondent's consent to the search was plainly voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Indeed, the evidence that his consent was the product of free will is so overwhelming that I would have held the consent voluntary even on the assumption that the preceding warrantless arrest was unconstitutional, and that the doctrine of Wong Sun v. United States, 371 U.S. 471 (1963), therefore was applicable. See Brown v. Illinois, 422 U.S. 590 (1975). The Court's different route to
Respondent was arrested without a warrant in a public restaurant six days after postal inspectors learned from a reliable source that he possessed stolen credit cards in violation of 18 U. S. C. § 1708. The Government made no effort to show that circumstances precluded the obtaining of a warrant, relying instead for the validity of the arrest solely upon the showing of probable cause to believe that respondent had committed a felony. Respondent contends, and the Court of Appeals held, that the absence of any exigency justifying the failure to procure a warrant renders this arrest violative of the Fourth Amendment.
In reversing the Court of Appeals, the Court concludes that nothing in our previous cases involving warrantless arrests supports the position of respondent and the Court of Appeals. See, e. g., Gerstein v. Pugh, 420 U.S. 103, 113 (1975). But it is fair to say, I think, that the prior decisions of the Court have assumed the validity of such arrests without addressing in a reasoned way the analysis advanced by respondent.
On its face, our decision today creates a certain anomaly. There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few "jealously and carefully drawn" exceptional circumstances. Jones v. United States, 357 U.S. 493, 499 (1958); see Almeida-Sanchez v. United States 413 U.S. 266, 279-280 (1973) (POWELL, J., concurring); United States v. United States District Court, 407 U.S. 297, 314-321 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (1971). On more than one occasion this Court has rejected an argument that a law enforcement officer's own probable cause to search a private place for contraband or evidence of crime should excuse his otherwise unexplained failure to procure a warrant beforehand. Id., at 450; Katz v. United States, 389 U.S. 347, 356-358
Since the Fourth Amendment speaks equally to both searches and seizures, and since an arrest, the taking hold of one's person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. Indeed, as an abstract matter an argument can be made that the restrictions upon arrest perhaps should be greater. A search may cause only annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimension only when it turns up evidence of criminality. An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent. Although an arrestee cannot be held for a significant period without some neutral determination that there are grounds to do so, see Gerstein, supra, no decision that he should go free can come quickly enough to erase the invasion of his privacy that already will have occurred. See Chimel v. California, 395 U.S. 752, 776 (1969) (WHITE, J., dissenting); cf. United States v.
But logic sometimes must defer to history and experience. The Court's opinion emphasizes the historical sanction accorded warrantless felony arrests. In the early days of the common law most felony arrests were made upon personal knowledge and without warrants. So established were such arrests as the usual practice that Lord Coke seriously questioned whether a justice of the peace, receiving his information secondhand instead of from personal knowledge, even could authorize an arrest by warrant. 4 E. Coke, Institutes 177 (6th ed. 1681). By the late 18th century it had been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that magistrates could issue arrest warrants upon information supplied by others. 4 W. Blackstone, Commentaries *290; see 2 M. Hale, Pleas of the Crown *108-110. But recognition of the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued to be practiced and upheld as before. 4 W. Blackstone, supra, at *282; 1 J. Chitty, Criminal Law *14-15. There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers. See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937); cf. Gerstein v. Pugh, 420 U. S., at 114-116. As the Court today notes, the Second Congress' passage of an Act authorizing such arrests
The historical momentum for acceptance of warrantless arrests, already strong at the adoption of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon the practice and, as the Government emphasizes, law enforcement agencies have developed their investigative and arrest procedures upon an assumption that warrantless arrests were valid so long as based upon probable cause. The decision of the Court of Appeals in this case was virtually unprecedented.
In sum, the historical and policy reasons sketched above fully justify the Court's sustaining of a warrantless arrest upon probable cause, despite the resulting divergence between the constitutional rule governing searches and that now held applicable to seizures of the person.
Finally, I share the view expressed in the opinion of MR. JUSTICE STEWART. It makes clear that we do not today consider or decide whether or under what circumstances
MR. JUSTICE STEWART, concurring in the result.
The arrest in this case was made upon probable cause in a public place in broad daylight. The Court holds that this arrest did not violate the Fourth Amendment, and I agree. The Court does not decide, nor could it decide in this case, whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest. See Gerstein v. Pugh, 420 U.S. 103, 113 n. 13; Coolidge v. New Hampshire, 403 U.S. 443, 474-481; Davis v. Mississippi, 394 U.S. 721, 728; Jones v. United States, 357 U.S. 493, 499-500.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
By granting police broad powers to make warrantless arrests, the Court today sharply reverses the course of our modern decisions construing the Warrant Clause of the Fourth Amendment. The Court turns next to the consent-to-search question last dealt with in Schneckloth
Before addressing what the Court does today, I note what it does not do. It does not decide this case on the narrow question that is presented. That is unfortunate for this is, fundamentally, a simple case.
On the afternoon of August 23, 1972, Awad Khoury, an informant of proved reliability, met with respondent Watson at a public restaurant under the surveillance of two postal inspectors. Khoury was under instructions to light a cigarette as a signal to the watching agents if Watson was in possession of stolen credit cards. Khoury lit a cigarette, and the postal inspectors moved in, made the arrest, and, ultimately, discovered under the floor mat of Watson's automobile the stolen credit cards that formed the basis of Watson's conviction and this appeal.
The signal of the reliable informant that Watson was in possession of stolen credit cards gave the postal inspectors probable cause to make the arrest. This probable cause was separate and distinct from the probable cause relating to the offense six days earlier, and provided an
This conclusion should properly dispose of the case before us. As the Court observes, ante, at 414, the Court of Appeals relied heavily on the supposed illegality of Watson's arrest in ruling that his consent to the search of his car was coerced. Neither the opinion of the Court of Appeals nor the briefs of the parties here address the remaining issue of the circumstances under which consent to search given by a suspect lawfully in custody may be deemed coerced. Since that issue is both complex and
Since, for reasons it leaves unexpressed, the Court does not take this traditional course, I am constrained to express my views on the issues it unnecessarily decides. The Court reaches its conclusion that a warrant is not necessary for a police officer to make an arrest in a public place, so long as he has probable cause to believe a felony has been committed, on the basis of its views of precedent and history. As my Brother POWELL correctly observes, ante, at 426-427, n. 1 (concurring), the precedent is spurious. None of the cases cited by the Court squarely confronted the issue decided today. Moreover, an examination of the history relied on by the Court shows that it does not support the conclusion laid upon it. After showing why, in my view, the Court's rationale does not support today's result, I shall examine the relevant decisions and suggest what I believe to be the proper rule for arrests.
The Fourth Amendment provides:
There is no doubt that by the reference to the seizure of persons, the Fourth Amendment was intended to
The Court next turns to history. It relies on the English common-law rule of arrest and the many state and federal statutes following it. There are two serious flaws in this approach. First, as a matter of factual analysis, the substance of the ancient common-law rule provides no support for the far-reaching modern rule that the Court fashions on its model. Second, as a matter of doctrine, the longstanding existence of a Government practice does not immunize the practice from scrutiny under the mandate of our Constitution.
The common-law rule was indeed as the Court states it:
See also Kurtz v. Moffitt, supra; Bad Elk v. United States, supra. To apply the rule blindly today, however, makes as much sense as attempting to interpret Hamlet's admonition to Ophelia, "Get thee to a nunnery, go,"
Both at common law and today, felonies find definition in the penal consequences of crime rather than the
See also Ex parte Wilson, 114 U.S. 417, 423 (1885); 4 W. Blackstone, Commentaries *95.
This difference reflects more than changing notions of penology. It reflects a substantive change in the kinds of crimes called felonies. Carroll v. United States, 267 U. S., at 158.
See also 9 Halsbury's Laws of England 450-793 (1909).
Thus the lesson of the common law, and those courts in this country that have accepted its rule, is an ambiguous one. Applied in its original context, the common-law rule would allow the warrantless arrest of some, but not all, of those we call felons today. Accordingly, the Court is simply historically wrong when it tells us that "[t]he balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact." Ante, at 421. As a matter of substance, the balance struck by the
I do not mean by this that a modern warrant requirement should apply only to arrests precisely analogous to common-law misdemeanors, and be inapplicable to analogous of common-law felonies. Rather, the point is simply that the Court's unblinking literalism cannot replace analysis of the constitutional interests involved. While we can learn from the common law, the ancient rule does not provide a simple answer directly transferable to our system. Thus, in considering the applicability of the common-law rule to our present constitutional scheme, we must consider both of the rule's two opposing constructs: the presumption favoring warrants, as well as the exception allowing immediate arrests of the most dangerous criminals. The Court's failure to do so, indeed its failure to recognize any tension in the common-law rule at all, drains all validity from its historical analysis.
Lastly, the Court relies on the numerous state and federal statutes codifying the common-law rule. But this, too, is no substitute for reasoned analysis. True enough, the national and state legislatures have steadily ratified the drift of the balance struck by the common-law rule past the bounds of its original intent. And it is true as well, as the Court observes, that a presumption of constitutionality attaches to every Act of Congress. But neither observation is determinative of the constitutional issue,
In sum, the Court's opinion is without foundation. It relies on precedents that are not precedents. It relies on history that offers no clear rule to impose, but only conflicting interests to balance. It relies on statutes that constitute, at best, no more than an aid to construction. The Court never grapples with the warrant requirement of the Fourth Amendment and the cases construing it. It simply announces, by ipse dixit, a rule squarely rejecting the warrant requirement we have favored for so long.
My Brother POWELL concludes: "Logic . . . would seem to dictate that arrests be subject to the warrant
One of the few absolutes of our law is the requirement that, absent the presence of one of a few "jealously and carefully drawn" exceptions, Jones v. United States, 357 U.S. 493, 499 (1958), a warrant be obtained prior to any search.
The rule the Court announces today for arrests is the reverse of this approach. It is, in essence, the Rabinowitz rule: "The relevant test is not whether it is reasonable to procure [an arrest] warrant, but whether the [arrest] was reasonable." United States v. Rabinowitz, 339 U.S. 56, 66 (1950). In the search context, Rabinowitz has been overruled, Chimel v. California, supra, at 764-768, and thoroughly discredited, see, e. g., United States v. United States District Court, supra, at 315, and n. 16. The Rabinowitz approach simply does not provide adequate protection for the important personal privacy interests codified in the
The Court has typically engaged in a two-part analysis in deciding whether the presumption favoring a warrant should be given effect in situations where a warrant has not previously been clearly required. Utilizing that approach we must now consider (1) whether the privacy of our citizens will be better protected by ordinarily requiring a warrant to be issued before they may be arrested; and (2) whether a warrant requirement would unduly burden legitimate governmental interests. United States v. United States District Court, supra, at 315; Camara v. Municipal Court, supra, at 533.
The first question is easily answered. Of course, the privacy of our citizens will be better protected by a warrant requirement. We have recognized that "the Fourth Amendment protects people, not places." Katz v. United States, supra, at 351. Indeed, the privacy guaranteed by the Fourth Amendment is quintessentially personal. Cf. Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). Thus a warrant is required in search situations not because of some high regard for property, but because of our regard for the individual, and his interest in his possessions and person.
Not only is the Fourth Amendment directly addressed to the privacy of our citizens, but it speaks in indistinguishable terms about the freedom of both persons and property from unreasonable seizures. A warrant is required in the search situation to protect the privacy of the individual, but there can be no less invasion of privacy when the individual himself, rather than his property, is searched and seized. Indeed, an unjustified arrest that forces the individual temporarily to forfeit his right to control his person and movements and interrupts the course of his daily business may be more intrusive than an unjustified search.
A warrant requirement for arrests would, of course, minimize the possibility that such an intrusion into the individual's sacred sphere of personal privacy would occur on less than probable cause. Primarily for this reason, a warrant is required for searches. Surely there is no reason to place greater trust in the partisan assessment of a police officer that there is probable cause for an arrest than in his determination that probable cause exists for a search.
We come then to the second part of the warrant test: whether a warrant requirement would unduly burden legitimate law enforcement interests. Dicta in Gerstein answer this question in the affirmative, and these concerns are somewhat amplified in the concurrence of my Brother POWELL. Ante, at 431-432. I believe, however, that the suggested concerns are wholly illusory. Indeed, the argument that a warrant requirement for arrests would be an onerous chore for the police seems somewhat anomalous in light of the Government's concession that "it is the standard practice of the Federal Bureau of Investigation [FBI] to present its evidence to the United States Attorney, and to obtain a warrant, before making an arrest." Brief for United States 26 n. 15. In the past, the practice and experience of the FBI have been taken as a substantial indication that no intolerable burden would be presented by a proposed rule of procedure. Miranda v. Arizona, 384 U.S. 436, 483-486 (1966).
The Government's assertion that a warrant requirement would impose an intolerable burden stems, in large part, from the specious supposition that procurement of an arrest warrant would be necessary as soon as probable cause ripens. Brief for United States 22-24. There is no requirement that a search warrant be obtained the moment police have probable cause to search. The rule is only that present probable cause be shown and a warrant obtained before a search is undertaken.
This sensible approach obviates most of the difficulties that have been suggested with an arrest warrant rule. Police would not have to cut their investigation short the moment they obtain probable cause to arrest, nor would undercover agents be forced suddenly to terminate their work and forfeit their covers. Godfrey v. United States, 123 U. S. App. D. C. 219, 358 F.2d 850 (1966). Moreover, if in the course of the continued police investigation exigent circumstances develop that demand an immediate arrest, the arrest may be made without fear of unconstitutionality, so long as the exigency was unanticipated and not used to avoid the arrest warrant requirement. Cf. Coolidge v. New Hampshire, 403 U. S., at 469-471 (evidence may be seized if in plain view only if its discovery is inadvertent). Likewise, if in the course of the continued investigation police uncover evidence tying the suspect to another crime, they may immediately arrest him for that crime if exigency demands it, and still be in full conformity with the warrant rule. This is why the arrest in this case was not improper.
In sum, the requirement that officers about to arrest a suspect ordinarily obtain a warrant before they do so does not seem unduly burdensome, at least no more burdensome than any other requirement that law enforcement officials undertake a new procedure in order to comply with the dictates of the Constitution. Cf. Gerstein v. Pugh, 420 U.S. 103 (1975); United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); Miranda v. Arizona, supra; Gideon v. Wainwright, 372 U.S. 335 (1963).
It is suggested, however, that even if application of this rule does not require police to secure a warrant as soon as they obtain probable cause, the confused officer would nonetheless be prone to do so. If so, police "would risk a court decision that the warrant had grown stale by the time it was used." Ante, at 432 (POWELL, J., concurring) (footnote omitted). This fear is groundless. First, as suggested above, the requirement that police procure a warrant before an arrest is made is rather simple of application. Thus, there is no need for the police to find themselves in this "squeeze." Second, the "squeeze" is nonexistent. Just as it is virtually impossible for probable cause for an arrest to grow stale between the time of formation and the time a warrant is procured, it is virtually impossible for probable cause to become stale between procurement and arrest.
Thus, the practical reasons marshaled against an arrest warrant requirement are unimpressive.
Accordingly, I dissent from the Court's contrary holding. It is always disheartening when the Court ignores a relevant body of precedent and eschews any considered analysis. It is more so when the result of such an approach is a rule that "leave[s] law-abiding citizens at the mercy of the officers' whim or caprice," Brinegar v. United States, 338 U.S. 160, 176 (1949), and renders the constitutional protection of our "persons" a nullity. The consequences of the Court's casually adopted rationale are clear.
First, the opinion all but answers the question raised in Coolidge v. New Hampshire, 403 U. S., at 480-481, namely, "whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest." Gerstein v. Pugh, 420 U. S., at 113 n. 13.
Second, by paying no attention whatever to the substance of the offense, and considering only whether it is labeled "felony," the Court, in the guise of "constitutionalizing" the common-law rule, actually does away with it altogether, replacing it with the rule that the police may, consistent with the Constitution, arrest on probable cause anyone who they believe has committed any sort of crime at all. Certainly this rule would follow
Lastly, the Court surrenders the opportunity to put teeth in our oft-expressed preference for the use of arrest warrants. Beck v. Ohio, 379 U. S., at 96; Wong Sun v. United States, 371 U. S., at 479-482. While some incentives for police to obtain arrest warrants remain,
Having disposed of the suggestion that the Fourth Amendment requires a warrant of arrest before the police may seize our persons, the Court turns its attention, briefly, to whether Watson voluntarily consented to the search of his automobile. I have suggested above that because this issue is of some complexity and has not been thoroughly briefed for us I would remand this case for initial consideration of the question by the Court of Appeals. The Court, however, finds the question simplicity itself. It applies the "totality of the circumstances" test established in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and treats the question as merely requiring the application of settled law to the facts before us.
That is not the case. Watson was in custody when his consent was obtained. The lack of custody was of decisional importance in Schneckloth, which repeatedly distinguished the case before it from one involving a suspect in custody. Id., at 232, 240-241, and n. 29, 246-248, and n. 36. The Court held:
Not once, but twice, the question the Court today treats as settled was expressly reserved:
See also id., at 247 n. 36.
I adhere to the views expressed in my dissent in Schneckloth, id., at 277, and therefore believe that the Government must always show that a person who consented to a search did so knowing he had the right to refuse. But even short of this position, there are valid reasons for application of such a rule to consents procured from suspects held in custody. It was, apparently, the force of those reasons that prompted the Court in Schneckloth to reserve the question. Most significantly, we have previously accorded constitutional recognition to the distinction between custodial and noncustodial police contacts. Miranda v. Arizona, 384 U. S., at 477-478. Indeed, Schneckloth directly relied on Miranda's articulation of that distinction to reach its conclusion. 412 U. S., at 232. Thus, while custodial interrogation is inherently coercive, and any consent thereby obtained necessarily suspect, Miranda (and Schneckloth) expressly reject the notion that there is anything inherently coercive about general noncustodial interrogation. 384 U. S., at 477-478; 412 U. S., at 247. For this reason it is entirely appropriate to place a substantially greater burden on the Government
Whether after due consideration the Court would accept this view or not, it is a surrender of our judicial task altogether to ignore the question. And, equally disturbing, it is a distortion of our precedent to pretend that what seemed a difficult and complex problem three years ago is no problem at all today.
I respectfully dissent.
In 1968 in the face of confusion generated by these decisions and two others striking down warrantless arrests by postal inspectors as not authorized by federal statute or by state law, Alexander v. United States, 390 F.2d 101 (CA5 1968); United States v. Moderacki, 280 F.Supp. 633 (Del. 1968), the Congress enacted 18 U. S. C. § 3061 to make clear that postal inspectors are empowered to arrest without warrant upon probable cause. Pub. L. 90-560, § 5 (a), 82 Stat. 998; H. R. Conf. Rep. No. 1918, 90th Cong., 2d Sess., 6 (1968); H. R. Rep. No. 1725, 90th Cong., 2d Sess. (1968); 114 Cong. Rec. 20914-20915, 26928, 28864-28865 (1968).
In its proposed Model Code of Pre-arraignment Procedure, the American Law Institute has addressed the question and recommends that an officer who is empowered to make an arrest and has probable cause to believe the person to be arrested is on private premises be authorized to demand entry to such premises and thereupon to enter to make an arrest. ALI, Model Code of Pre-arraignment Procedure § 120.6 (1) (1975). In certain cases of necessity, however, notification and demand are not required. § 120.6 (2). Authority to make nighttime arrests on private premises is restricted to arrests with warrants authorizing nighttime execution and to certain cases of necessity. § 120.6 (3). The commentary states that 24 States (and the District of Columbia) authorize forcible entry whenever there is authority to arrest, six whenever the arrest is under a warrant or for a felony, six whenever the arrest is under a warrant, and two whenever the arrest is for a felony. Id., at 310, 696-697. Of these jurisdictions all but three have prior-notice requirements for entries to make an arrest similar to those 18 U. S. C. § 3109 imposes on entries to execute a search warrant. ALI Model Code, supra, at 310-313.
"(1) Authority to Arrest Without a Warrant. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
"(a) a felony;
"(b) a misdemeanor, and the officer has reasonable cause to believe that such person
"(i) will not be apprehended unless immediately arrested; or
"(ii) may cause injury to himself or others or damage to property unless immediately arrested; or
"(c) a misdemeanor or petty misdemeanor in the officer's presence."
"This Section does not require an officer to arrest under a warrant even if a reasonable opportunity to obtain a warrant exists. As to arrests on the street such a requirement would be entirely novel. Moreover the need for it is not urgent, and the subsequent inquiry such a requirement would authorize would be indeterminate and difficult." Id., at 303 (footnotes omitted).
As the commentary notes, id., at 289 n. 1, a statute in the State of Georgia is more restrictive of the arrest power than the general standard. Ga. Code Ann. § 27-207 (a) (Supp. 1975). See also Colo. Rev. Stat. Ann. § 16-3-102 (1973), which provides that an arrest warrant should be obtained "when practicable," and Mont. Rev. Codes Ann. § 95-608 (d) (1969) which authorizes a warrantless arrest if "existing circumstances require" it. A North Carolina statute, N. C. Gen. Stat. § 15-41 (1965), similar to the Georgia statute, was replaced in 1975 by a provision permitting warrantless felony arrests on probable cause. N. C. Gen. Stat. § 15A-401 (b) (2) (1975).
"those bootless crimes, prosecuted by an appeal with an offer of trial by battle, the felon's lands to go to his lord or the king, his chattels confiscated, and life and members forfeited, if guilty, and if he fled he became an outlaw . . . ." Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 569 (1924).
See also, e. g., Ark. Stat. Ann. § 41-606 (1964) (assault with intent to kill); § 41-607 (assault with intent to rape); § 41-1805 (forgery); § 41-3005 (perjury); § 41-2308 (Supp. 1973) (kidnaping).
Fla. Stat. Ann. § 787.02 (Supp. 1975) (false imprisonment); § 831.01 (Supp. 1975) (forgery); § 837.012 (Supp. 1975) (perjury); § 843.14 (Supp. 1975) (compounding felonies); § 870.03 (Supp. 1975) (riots and routs).
Ill. Ann. Stat. § 10-1 (Supp. 1975) (kidnaping); § 14-4 (eavesdropping); § 33-1 (Supp. 1975) (bribery); § 32-2 (Supp. 1975) (perjury).
Ky. Rev. Stat. § 520.020 (1975) (escape); § 516.020 (1975) (forgery); § 509.020 (1975) (kidnaping); § 515.020 (1975) (assault with intent to rob); § 523.020 (1975) (perjury).
Mass. Gen. Laws Ann., c. 265, § 29 (1970) (assault with intent to commit a felony); c. 268, § 36 (compounding felonies); c. 268, § 13B (obstructing justice); c. 267, § 1 (Supp. 1975) (forgery); c. 272, § 99 (interception of wire and oral communications); c. 268, § 16 (Supp. 1975) (escape); c. 265, § 26 (Supp. 1975) (kidnaping).
Okla. Stat. Ann., Tit. 21, § 443 (Supp. 1975) (escape); § 499 (1958) (perjury); § 653 (Supp. 1975) (assault with intent to kill); § 1312 (1958) (riot); § 1621 (1958) (forgery). Wash. Rev. Code § 9.11.010 (1974) (assault with intent to commit a felony); § 9.27.050 (riot); § 9.31.010 (escape); § 9.44.020 (forgery); § 9.52.010 (kidnaping); § 9.72.010 (perjury).
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Id., at 13-14.
Substitute "arrest" for "search" and replace references to the home with references to the person, and the justification for an arrest warrant compellingly emerges.
"Indeed, if MR. JUSTICE WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to re-examine the assumption. . . .
". . . The case of Warden v. Hayden, [387 U.S. 294 (1967),] where the Court elaborated a `hot pursuit' justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances." 403 U. S., at 480-481.
The Court is correct that this language relates only to the question reserved both in Gerstein v. Pugh, 420 U. S., at 113 n. 13, and in this case.
The second incentive for police to obtain a warrant is that they may desire to present their evidence to a magistrate so as to be sure that they have probable cause. If probable cause is lacking, the police will then have an opportunity to gather more evidence rather than make an illegal arrest that would result in suppression of any evidence seized.