MR. JUSTICE STEWART delivered the opinion of the Court.
An Illinois statute authorizes law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant.
On March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a "Complaint for Search Warrant" to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and:
On the strength of this complaint, the judge issued a warrant authorizing the search of "the following person or place: . . . [T]he Aurora Tap Tavern. . . . Also the person of `Greg', the bartender, a male white with blondish hair appx. 25 years." The warrant authorized the police to search for "evidence of the offense of possession of a controlled substance," to wit, "[h]eroin, contraband, other controlled substances, money, instrumentalities and narcotics, paraphernalia used in the manufacture, processing and distribution of controlled substances."
In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, the officers announced their purpose and advised all those present that they were going to conduct a "cursory search for weapons." One of the officers then proceeded to pat down each of the 9 to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises.
The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first patdown of Ybarra, the officer felt what he described as "a cigarette pack with objects in it." He did not remove this pack from Ybarra's pocket. Instead, he moved on and proceeded to pat down other customers.
Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance. He filed a pretrial motion to suppress all the contraband that had been seized from his person at the Aurora Tap Tavern. At the hearing on this motion the State sought to justify the search by reference to the Illinois statute in question. The trial court denied the motion to suppress, finding that the search had been conducted under the authority of subsection (b) of the statute, to "prevent the disposal or concealment of [the] things particularly described in the warrant." The case proceeded to trial before the court sitting without a jury, and Ybarra was found guilty of the possession of heroin.
On appeal, the Illinois Appellate Court held that the Illinois statute was not unconstitutional "in its application to the facts" of this case. 58 Ill.App.3d 57, 64, 373 N.E.2d 1013, 1017. The court acknowledged that, had the warrant directed that a "large retail or commercial establishment" be searched, the statute could not constitutionally have been read to "authorize a `blanket search' of persons or patrons found" therein. Id., at 62, 373 N. E. 2d, at 1016. The court interpreted the statute as authorizing the search of persons found on premises described in a warrant only if there is "some showing of a connection with those premises, that the police officer reasonably suspected an attack, or that the person searched would destroy or conceal items described in the warrant." Id., at 61, 373 N. E. 2d, at 1016. Accordingly, the State Appellate Court found that the search of Ybarra had been constitutional because it had been "conducted in a
There is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from "Greg," would be violating the law.
Not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Upon entering the tavern, the
It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed.
Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from
Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U.S. 1. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.
We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently
The Terry case created an exception to the requirement of probable cause, an exception whose "narrow scope" this Court "has been careful to maintain."
What has been said largely disposes of the State's second and alternative argument in this case. Emphasizing the important governmental interest "in effectively controlling traffic in dangerous, hard drugs" and the ease with which the evidence of narcotics possession may be concealed or moved around from person to person, the State contends that the Terry "reasonable belief or suspicion" standard should be made applicable to aid the evidence-gathering function of the search warrant. More precisely, we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, at least where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband."
Over 30 years ago, the Court rejected a similar argument in United States v. Di Re, 332 U.S. 581, 583-587. In that case, a federal investigator had been told by an informant that a transaction in counterfeit gasoline ration coupons was going to occur at a particular place. The investigator went to that location at the appointed time and saw the car of one of the suspected parties to the illegal transaction. The investigator went over to the car and observed a man in the driver's seat, another man (Di Re) in the passenger's seat, and the informant in the back. The informant told the investigator that the person in the driver's seat had given him counterfeit coupons. Thereupon, all three men were arrested and searched. Among the arguments unsuccessfully advanced by the Government to support the constitutionality of the search of Di Re was the contention that the investigator could
The Di Re case does not, of course, completely control the case at hand. There the Government investigator was proceeding without a search warrant, and here the police possessed a warrant authorizing the search of the Aurora Tap Tavern. Moreover, in Di Re the Government conceded that its officers could not search all the persons in a house being searched pursuant to a search warrant.
For these reasons, we conclude that the searches of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments.
It is so ordered.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting.
I join MR. JUSTICE REHNQUIST'S dissent since I cannot subscribe to the Court's unjustifiable narrowing of the rule of
These officers had validly obtained a warrant to search a named person and a rather small, one-room tavern for narcotics. Upon arrival, they found the room occupied by 12 persons. Were they to ignore these individuals and assume that all were unarmed and uninvolved? Given the setting and the reputation of those who trade in narcotics, it does not go too far to suggest that they might pay for such an easy assumption with their lives. The law does not require that those executing a search warrant must be so foolhardy. That is precisely what Mr. Chief Justice Warren's opinion in Terry stands for. Indeed, the Terry Court recognized that a balance must be struck between the privacy interest of individuals and the safety of police officers in performing their duty. I would hold that when police execute a search warrant for narcotics in a place of known narcotics activity they may protect themselves by conducting a Terry search. They are not required to assume that they will not be harmed by patrons of the kind of establishment shown here, something quite different from a ballroom at the Waldorf. "The officer need not be absolutely certain that the individual is armed; the issue is
I do not find it controlling that the heroin was not actually retrieved from appellant until the officer returned after completing the first search. The "cigarette pack with objects in it" was noticed in the first search. In the "second search," the officer did no more than return to the appellant and retrieve the pack he had already discovered. That there was a delay of minutes between the search and the seizure is not dispositive in this context, where the searching officer made the on-the-spot judgment that he need not seize the suspicious package immediately. He could first reasonably make sure that none of the patrons was armed before returning to appellant. Thus I would treat the second search and its fruits just as I would had the officer taken the pack immediately upon noticing it, which plainly would have been permissible.
Under this analysis, I need not reach the validity of the Illinois statute under which the Illinois court sustained the search. Parenthetically, I find the Court's failure to pass on the Illinois statute puzzling in light of the Court's holding that the searches were not authorized by Terry.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
On March 1, 1976, agents of the Illinois Bureau of Investigation executed a search warrant in the Aurora Tap Tavern in Aurora, Ill. The warrant was based on information given by a confidential informant who said that he had seen heroin on the person of the bartender and in a drawer behind the bar on at least 10 occasions. Moreover, the informant advised the affiant that the bartender would have heroin for sale on March 1. The warrant empowered the police to search the Aurora Tap and the person of "Greg," the bartender.
When police arrived at the Aurora Tap, a drab, dimly lit tavern, they found about a dozen or so persons standing or
Confronted with these facts, the Court concludes that the police were without authority under the warrant to search any of the patrons in the tavern and that, absent probable cause to believe that Ybarra possessed contraband, the search of his person violated the Fourth and Fourteenth Amendments. Because I believe that this analysis is faulty, I dissent.
The first question posed by this case is the proper scope of a policeman's power to search pursuant to a valid warrant. This Court has had very few opportunities to consider the scope of such searches. An early case, Marron v. United States, 275 U.S. 192 (1927), held that police could not seize one thing under a search warrant describing another thing. See also Steele v. United States, 267 U.S. 498 (1925) (warrant authorizing search of building used as a garage empowers police to search connecting rooms). Three other cases, Berger v. New York, 388 U.S. 41 (1967); United States v. Kahn, 415 U.S. 143 (1974); and United States v. Donovan, 429 U.S. 413 (1977), examined the scope of a warrant in the context of electronic surveillance. A number of cases involving warrantless searches have offered dicta on the subject of searches pursuant to a warrant. See, e. g., Bivens v. Six
Faced with such a dearth of authority, it makes more sense than ever to begin with the language of the Fourth Amendment itself:
As often noted, the Amendment consists of two independent clauses joined by the conjunction "and." See, e. g., Go-Bart Co. v. United States, 282 U.S. 344, 356-357 (1931). The first clause forbids "unreasonable searches and seizures" of "persons, houses, papers, and effects. . . ." The second clause describes the circumstances under which a search warrant or arrest warrant may issue, requiring specification of the place to be searched as well as the persons or things to be seized.
Much of the modern debate over the meaning of the Fourth Amendment has focused on the relationship between the reasonableness requirement and the warrant requirement. In particular, the central question has been whether and under what circumstances the police are entitled to conduct "reasonable" searches without first securing a warrant. As this Court has summarized:
MR. JUSTICE STEWART explained the current accommodation of the two clauses in Katz v. United States, 389 U.S. 347, 357 (1967): "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." See also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Here, however, we must look to the language of the Fourth Amendment to answer a wholly different question: whether and under what circumstances the police may search a person present at the place named in a warrant. In this regard, the second clause of the Amendment, by itself, offers no guidance. It is merely a set of standards that must be met before a search warrant or arrest warrant may "issue." The restrictions on a policeman's authority to search pursuant to a warrant derive, of course, from the first clause of the Amendment, which prohibits all "unreasonable" searches, whether those searches are pursuant to a warrant or not. See GoBart Co. v. United States, supra, at 357. Reading the two clauses together, we can infer that some searches or seizures are per se unreasonable: searches extending beyond the place specified, cf. Steele v. United States, supra, or seizures of
Nor, as a practical matter, could we require the police to specify in advance all persons that they were going to search at the time they execute the warrant. A search warrant is, by definition, an anticipatory authorization. The police must offer the magistrate sufficient information to confine the search but must leave themselves enough flexibility to react reasonably to whatever situation confronts them when they enter the premises. An absolute bar to searching persons not named in the warrant would often allow a person to frustrate the search simply by placing the contraband in his pocket. I cannot subscribe to any interpretation of the Fourth Amendment that would support such a result, and I doubt that this Court would sanction it if that precise fact situation were before it.
Recognizing that the authority to search premises must, under some circumstances, include the authority to search
The generality of these attempts to define the proper limits of such searches does not mean, of course, that no limits exist.
In this case, however, the warrant requirement has been fully satisfied. As a result, in judging the reasonableness of the search pursuant to the warrant, we need not measure it against jealously drawn exceptions to that requirement. Only once before, to my knowledge, has this Court been relieved of concern for the warrant requirement to the extent that we could give full scope to the notion of reasonableness. In Terry v. Ohio, 392 U.S. 1 (1968), this Court considered the applicability of the Fourth Amendment to an on-the-street encounter between a policeman and three men who had aroused his suspicions. In upholding the ensuing "stop and frisk," this Court found the warrant requirement completely inapposite because "on-the-spot" interactions between police and citizens "historically [have] not been, and as a practical matter could not be, subjected to the warrant procedure." Id., at 20. The conduct in question had to be judged solely
The petitioner in Terry had sought a "rigid all-or-nothing model of justification and regulation under the [Fourth] Amendment," a model allowing the police to search some individuals completely and other individuals not at all. Such a model, however, would have overlooked "the utility of limitations upon the scope, as well as the initiation, of police actions as a means of constitutional regulation." Id., at 17. This Court, therefore, opted for a flexible model balancing the scope of the intrusion against its justification:
In the present case, Ybarra would have us eschew such flexibility in favor of a rule allowing the police to search only those persons on the premises for whom the police have probable cause to believe that they possess contraband. Presumably, such a belief would entitle the police to search those persons completely. But such a rule not only reintroduces the rigidity condemned in Terry, it also renders the existence of the search warrant irrelevant. Given probable cause to believe that a person possesses illegal drugs, the police need no warrant to conduct a full body search. They need only arrest that person and conduct the search incident to that arrest. See Chimel v. California, 395 U.S. 752, 763 (1969). It should not matter, of course, whether the arrest precedes the search or vice versa. See, e. g., United States v. Gorman, 355 F.2d 151,
As already noted, I believe it error to analyze this case as if the police were under an obligation to act within one of the narrow exceptions to the warrant requirement, yet this is precisely what Ybarra would have us do. Whereas in Terry the warrant requirement was inapposite, here the warrant requirement has been fully satisfied. In either case we should give full scope to the reasonableness requirement of the first clause of the Fourth Amendment. Thus, in judging the reasonableness of a search pursuant to a warrant, which search extends to persons present on the named premises, this Court should consider the scope of the intrusion as well as its justification.
Viewed sequentially, the actions of the police in this case satisfy the scope/justification test of reasonableness established by the first clause of the Fourth Amendment as interpreted in Terry. The police entered the Aurora Tap pursuant to the warrant and found themselves confronting a dozen people, all standing or sitting at the bar, the suspected location of the contraband. Because the police were aware that heroin was being offered for sale in the tavern, it was quite reasonable to assume that any one or more of the persons at the bar could have been involved in drug trafficking. This assumption, by itself, might not have justified a full-scale search of all the individuals in the tavern. Nevertheless, the police also were quite conscious of the possibility that one or more of the patrons could be armed in preparation for just such an intrusion. In the narcotics business, "firearms are as much `tools of the trade' as are most commonly recognized articles of narcotics paraphernalia." United States v. Oates, 560 F.2d 45, 62 (CA2 1977). The potential danger to the police executing the warrant and to innocent individuals in this dimly lit tavern cannot be minimized. By conducting an immediate frisk of those persons at the bar, the police eliminated
Ybarra contends that Terry requires an "individualized" suspicion that a particular person is armed and dangerous. While this factor may be important in the case of an on-the-street stop, where the officer must articulate some reason for singling the person out of the general population, there are at least two reasons why it has less significance in the present situation, where execution of a valid warrant had thrust the police into a confrontation with a small, but potentially dangerous, group of people. First, in place of the requirement of "individualized suspicion" as a guard against arbitrary exercise of authority, we have here the determination of a neutral and detached magistrate that a search was necessary. As this Court noted in Fisher v. United States, 425 U.S. 391, 400 (1976), the Framers of the Fourth Amendment "struck a balance so that when the State's reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue." The question then becomes whether, given the initial decision to intrude, the scope of the intrusion is reasonable.
In addition, the task performed by the officers executing a search warrant is inherently more perilous than is a momentary encounter on the street. The danger is greater "not only because the suspect and officer will be in close proximity for a longer period of time, but also . . . because the officer's investigative responsibilities under the warrant require him to direct his attention to the premises rather than the person." W. LaFave, Search and Seizure § 4.9, pp. 150-151 (1978). To hold a police officer in such a situation to the same standard of "individualized suspicion" as might be required in the case of an on-the-street stop would defeat the purpose of gauging reasonableness in terms of all the circumstances surrounding an encounter.
Measured against the purpose for the initial search is the scope of that search. I do not doubt that a patdown for weapons is a substantial intrusion into one's privacy. See Terry v. Ohio, 392 U. S., at 17, n. 13. Nevertheless, such an intrusion was more than justified, under the circumstances here, by the potential threat to the lives of the searching officers and innocent bystanders. In the rubric of Terry itself, a "man of reasonable caution" would have been warranted in the belief that it was appropriate to frisk the 12 or so persons in the vicinity of the bar for weapons. See id., at 21-22. Thus, the initial frisk of Ybarra was legitimate.
During this initial patdown, Officer Johnson felt something suspicious: a cigarette package with objects in it. The record below is not entirely clear as to the shape or texture of the objects, but it is clear that Officer Johnson had at least a subjective suspicion that the objects were packets of heroin like those described in the warrant. He testified, for example, that after patting down the other persons at the bar, he returned directly to Ybarra to search him "for controlled substances." App. 49. At this point, he reached into Ybarra's pants pocket, removed the cigarette package, and confirmed his suspicion.
The courts below reached a similar conclusion. The trial court noted correctly that "[i]t might well not be reasonable to search 350 people on the first floor of Marshall Field, but we're talking about, by description, a rather small tavern." See App. 43. The question, as understood by the trial court, was the "reasonableness" of the intrusion under all the surrounding circumstances. Ibid. The Illinois Appellate Court agreed. In an earlier case, People v. Pugh, 69 Ill.App.2d 312, 217 N.E.2d 557 (1966), the Appellate Court had concluded that the police acted reasonably in searching the brother of the owner of the named premises during the execution
I would conclude that Officer Johnson, acting under the authority of a valid search warrant, did not exceed the reasonable scope of that warrant in locating and retrieving the heroin secreted in Ybarra's pocket. This is not a case where Ybarra's Fourth Amendment rights were at the mercy of overly zealous officers "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 13-14 (1948). On the contrary, the need for a search was determined, as contemplated by the second clause of the Fourth Amendment, by a neutral and detached magistrate, and the officers performed their duties pursuant to their warrant in an appropriate fashion. The Fourth Amendment requires nothing more.
"In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:
"(a) To protect himself from attack, or
"(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant."
The circumstances of this case do not remotely approach those in which the Court has said that a search may be made on less than probable cause. In addition to Terry v. Ohio, 392 U.S. 1, see, e. g., Delaware v. Prouse, 440 U.S. 648; Marshall v. Barlow's, Inc., 436 U.S. 307; United States v. Martinez-Fuerte, 428 U.S. 543; South Dakota v. Opperman, 428 U.S. 364; United States v. Brignoni-Ponce, 422 U.S. 873; United States v. Biswell, 406 U.S. 311; Camara v. Municipal Court, 387 U.S. 523.