UNITED STATES OF AMERICA, PETITIONER V. WILLIAM HARRIS SHARPE AND DONALD DAVIS SAVAGE No. 83-529 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. Petition For a Writ of Certiorari to the United States Court of Appeals For the Fourth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals subsequent to this Court's remand (App. A, infra, 1a-13a) is reported at 712 F.2d 65. /1/ The earlier opinion of the court of appeals (App. B, infra, 14a-51a) is reported at 660 F.2d at 967. /2/ The district court issued no written opinion. JURISDICTION The judgments of the court of appeals (App. C, infra, 52a and 53a) on remand from this Court were entered on June 30, 1983. On August 22, 1983, Justice Brennan extended the time within which to file a petition for a writ of certiorari to and including September 28, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether law enforcement officers may temporarily detain an individual reasonably suspected of criminal activity for the period -- brief, but exceeding a few minutes -- reasonably necessary to pursue a circumscribed investigation of the suspected criminal activity. 2. Whether, assuming that the initial phase of either respondent's detention was unduly extended, the illegality mandates suppression of a large shipment of marijuana which, because of its distinct odor, was discovered immediately thereafter in respondent Savage's vehicle. STATEMENT Following a bench trial in the United States District Court for the District of South Carolina, respondents were convicted of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Respondent Savage was sentenced to eight years' imprisonment, to be followed by a ten-year special parole term. Respondent Sharpe was sentenced to five years' imprisonment to be followed by a ten-year special parole term. A divided panel of the court of appeals reversed respondents' convictions. On our petition for a writ of certiorari (No. 81-1736), the judgment of the court of appeals was vacated and the case remanded for further consideration. 457 U.S. 1127. Upon remand the court of appeals, again divided, modified its opinion, but once again reversed respondents' convictions. 1. Prior to trial, respondents moved to suppress a large shipment of marijuana found in bales seized from a pickup truck that had been operated by respondent Savage. The evidence at a suppression hearing consolidated with the bench trial showed that, on the morning of June 9, 1978, DEA Agent Luther Cooke was on patrol in an unmarked car on a coastal road in the vicinity of Sunset Beach, North Carolina, an area under surveillance by law enforcement authorities for suspected drug trafficking (I Tr. 35-36). At approximately 6:30 a.m., Agent Cooke noticed a blue pickup truck outfitted with a camper shell travelling in tandem with a blue Pontiac. It was later ascertained that the pickup truck was operated by respondent Savage and that the Pontiac (which also contained a male passenger) was operated by respondent Sharpe. Cooke noticed that the pickup truck was riding low in the rear and appeared overloaded; in addition, the rear window of the camper appeared to be covered with a quilted material (I Tr. 39-41). As he followed the pickup, the agent also observed that when the truck hit a bump or turned a corner it did not bounce or sway, a further indication that it was carrying a heavy load. Cooke drove along behind the two vehicles for approximately 21 miles. When the respondents reached the vicinity of Myrtle Beach, South Carolina, Agent Cooke radioed the State Highway Patrol for assistance (I Tr. 44-46). Officer Kenneth Thrasher, in a marked patrol car, responded to Cooke's request for assistance. After Thrasher caught up with Cooke, the two officers, in their separate vehicles, followed respondents as the Pontiac and pickup truck turned onto a side road that ran through a campground and looped back to the highway. Although the speed limit on the road was 35 miles per hour, respondents drove their vehicles at 50 to 60 miles per hour in an apparent attempt to elude the officers (I Tr. 50-52, 142-144; App. B, infra, 15a-16a). After completing this fruitless detour the Pontiac and the pickup truck returned to the six-lane highway and continued to proceed in a southerly direction in the center lane. The officers maintained their pursuit. Agent Cooke asked Officer Thrasher to signal both vehicles to stop. Thrasher pulled into the left lane alongside the Pontiac, the lead vehicle, and signaled the driver, respondent Sharpe, to pull over. As Sharpe moved his car into the right lane in compliance with this direction, the pickup truck, driven by respondent Savage, cut between the Pontiac and Thrasher's patrol car, nearly hitting the patrol car, and continued off down the highway (I Tr. 53-54, 144-145). Officer Thrasher pursued the pickup, while DEA Agent Cooke pulled up behind the Pontiac, which had come to a stop, approached its occupants, and requested identification from respondent Sharpe and his companion. Sharpe produced a Georgia driver's license bearing the name Raymond J. Pavlovich (I Tr. 54). Cooke then attempted for several minutes to radio Thrasher to determine whether he has succeeded in stopping the pickup, but he was unable to make contact, apparently because Thrasher was not in his patrol car. Approximately 10 to 15 minutes after the initial stop of the Pontiac, two local Myrtle Beach policemen arrived at the location of that stop to remain with Sharpe and his companion while Cooke left to locate Officer Thrasher and the pickup (I Tr. 54-57, 100-101). Meanwhile, Officer Thrasher had succeeded in stopping respondent Savage's pickup truck approximately a half-mile down the highway. As Thrasher got out of his patrol car with his revolver drawn, Savage stepped out of the truck. After searching Savage, Thrasher holstered his weapon and asked Savage to produce his driver's license and vehicle registration. Savage produced a Florida driver's license in his own name and a bill of sale in the name of Pavlovich. Noting that the truck bore South Carolina license plates, that the bill of sale bore a Georgia address and that Savage's license was from Florida, Thrasher questioned Savage about the ownership of the truck. In response to the officer's questions, Savage stated that the vehicle belonged to a friend, that it was empty, and that he was taking it to get the shock absorbers fixed. He also denied speeding on the campground road and stated that Thrasher was not behind him when he drove through the area. When Thrasher told Savage that Cooke was a DEA agent and would be arriving shortly, Savage became nervous, requested that Thrasher return his driver's license, and asked permission to leave. Thrasher responded that Savage was not free to leave, that he would be detained until Cooke's arrival, and that he could be held on speeding charges if necessary (I Tr. 146-150, 163-165). When Agent Cooke arrived, approximately 20 minutes after the truck had been stopped, he identified himself, examined the bill of sale that Savage had produced, and observed that the name on it matched the name on the driver's license that Sharpe had produced. Cooke told Savage that he suspected that the pickup contained marijuana. He requested permission to search the truck, but Savage declined, explaining that he was not the owner of the vehicle (I Tr. 61, 103-105). Cooke then stepped onto the rear bumper and, noting that the truck did not move in response, confirmed his suspicion that the truck was heavily loaded. Cooke then leaned against the rear window of the camper top, took a deep breath, and "smelled a very strong and distinct odor of marijuana" (I Tr. 62, 151). Using keys that he removed from the vehicle's ignition, Agent Cooke opened the rear door of the camper and found inside a large number of burlap-wrapped bags, which he described as "similar to the large number of bales of marijuana (he had) encountered over the * * * years" that he had been employed as a DEA agent (I Tr. 62-63, 151-152). Cooke then placed Savage under arrest and left him in Officer Thrasher's custody while he returned to the Pontiac to arrest Sharpe and his companion (I Tr. 63, 119). /3/ In all, 30 to 40 minutes elapsed between the initial stop of the Pontiac and the arrests of Savage and Sharpe following the discovery of the marijuana bales in the pickup (I Tr. 120; App. B, infra, 17a). Later that day, the pickup truck was taken to the Federal Building in Charleston, South Carolina. Two or three days later, DEA agents removed from the truck 43 bales weighing a total of 2,600 pounds and, acting without a search warrant, selected eight bales at random, punctured their coverings, and withdrew core samples for laboratory analysis (I Tr. 65-68). The analysis confirmed that the substance was marijuana. On the basis of this evidence, the district court denied respondents' motions to suppress the contraband and to suppress Sharpe's pseudonymous driver's license and the bill of sale for the pickup truck (I Tr. 221-222; II Tr. 151-154). 2. A divided court of appeals reversed respondents' convictions (App. B, infra, 14a-51a). The majority assumed that Agent Cooke "had an articulable and reasonable suspicion that (respondents) were engaged in marijuana trafficking when he and Thrasher stopped the Pontiac and the truck" (id. at 19a). But the court held the investigative stops of respondents unlawful because they "failed to meet the requirement of brevity" (ibid.) thought to govern such detention on less than probable cause, which it inferred from this Court's decisions in Dunaway v. New York, 442 U.S. 200 (1979), United States v. Brignoni-Ponce, 422 U.S. 873 (1975), and Terry v. Ohio, 392 U.S. 1 (1968). The court of appeals relied particularly (App. B, infra 19a-20a) upon language in Brignoni-Ponce describing a typical border patrol investigatory stop (stated to be permissible if based on reasonable suspicion) as "'usually consum(ing) no more than a minute.'" 422 U.S. at 880, quoting Brief for the United States at 25. The majority considered only the duration of the respondents' detention in holding that the encounter had exceeded the scope of investigation permissible on the basis of reasonable suspicion. Noting that "Sharpe was detained * * * for thirty to forty minutes before Cooke returned to the Pontiac to arrest him, and (that) Savage was held * * * by Thrasher for at least fifteen minutes before being questioned and finally arrested by Cooke," the majority concluded that "the length of the detentions effectively transformed them into de facto arrests without bases in probable cause" and that the detentions therefore constituted unlawful seizures under the Fourth Amendment (App. B, infra, 20a). The court further concluded that the shipment of marijuana discovered in the pickup truck should have been suppressed as the fruit of the unlawful detention of respondents (App. B, infra, 21a-22a). /4/ The court reasoned that, but for the extended detention of Savage, "Cooke obviously would not have had the opportunity to smell the raw marijuana, and thus would have had no reason to search the truck" (id. at 22a). The fact that the odor of marijuana was apparent to Agent Cooke when he approached the truck was deemed irrelevant because "Cooke's smelling of the marijuana was so intertwined with the circumstances of the unlawful detentions" (ibid.). As an alternative basis for mandating suppression of the contraband, the court of appeals majority held that the DEA agents' warrantless search of the burlap-wrapped marijuana bales discovered in the pickup truck violated the Fourth Amendment (App. B, infra, 23a-25a). The court concluded that, under either the analysis adopted by the plurality opinion in Robbins v. California, 453 U.S. 420 (1981), or the expectation-of-privacy analysis employed in Justice Powell's concurring opinion in that case (id. at 429-430), the warrantless search of the bales was impermissible. Judge Russell dissented (App. B, infra, 26a-51a). He disagreed with the majority's initial holding that an investigative detention on less than probable cause is invariably unlawful if more than momentary. Instead, he wrote, in determining whether the length of detention renders a particular stop unreasonable, the courts must look to the totality of the circumstances justifying the detention (id. at 29a). Judge Russell observed that any delay that prolonged respondents' detention in this case was not attributable to the law enforcement officers, but was occasioned by respondent Savage's efforts to avoid being stopped together with respondent Sharpe. Because it was reasonable to detain both respondents for questioning by DEA Agent Cooke concerning their suspected joint drug trafficking activities, Judge Russell concluded that the detention of respondents did not violate the Fourth Amendment (id. at 29a-38a). Judge Russell also rejected the majority's alternative holding disapproving the warrantless search of the marijuana bales (App. B, infra, 39a-51a). He reasoned that the distinctive odor emanating from the 2,600 pounds of marijuana effectively "place(d) the contents of the bales in 'plain view'" (id. at 44a-45a) and accordingly rendered their warrantless search permissible. 3. After rehearing en banc was denied by an equally divided court, /5/ the United States sought review in this Court. Our petition, No, 81-1736, presented three questions for review: whether the investigative detention of respondents was unlawfully prolonged; whether the marijuana found in the pickup truck was correctly found to be a fruit of any unlawful detention; and whether the warrantless search of the bales was itself unlawful. This Court granted the petition, vacated the judgment of the court of appeals, and remanded the case for further consideration in light of the intervening decision in United States v. Ross, 456 U.S. 798 (1982). United States v. Sharpe, 457 U.S. 1127 (1982). /6/ 4. On remand, a divided court of appeals again reversed the convictions (App. A, infra, 1a-13a). The majority concluded that, in light of Ross, it was required to "disavow" (App. A, infra, 2a) its alternative holding disapproving the warrantless search of the marijuana bales. But "(f)inding that Ross does not adversely affect our primary holding that the initial stop of the vehicle and the lengthy detention of the two defendants constituted illegal seizures," the court readopted the prior opinion as modified, reaffirmed its previous decision, and reversed the convictions (id. at 2a-3a). Judge Russell again dissented. In his view this Court's remand required the court of appeals to reconsider its conclusion that the detention of respondents was unlawfully prolonged (App. A, infra, 5a-7a). /7/ Addressing that issue, he urged that the court's adherence to its prior decision was inconsistent with Michigan v. Summers, 452 U.S. 692 (1981), and improperly failed to take into account the respondents' responsibility for the circumstances that prolonged their detention (App. A, infra, 8a-9a). /8/ REASONS FOR GRANTING THE PETITION 1. The question whether the police may, on the basis of reasonable suspicion not amounting to probable cause, detain a person for a limited but more than momentary period where necessary to advance their investigation is a matter of great practical importance to federal and state law enforcement authorities. If allowed to stand, the holding of the court below that, absent probable cause, investigatory stops that are more than momentary are per se unreasonable under the Fourth Amendment, without regard to the facts or circumstances that affect the duration of the detention, will seriously impede legitimate investigative activities by law enforcement officers. The decision below is also fundamentally at odds with the pertinent decisions of this Court and is inconsistent with decisions of other courts of appeals that have addressed the issue. a. In Michigan v. Summers this Court held that it was lawful for the police to detain the occupants of a house on less than probable cause while executing a warrant authorizing a search of the premises for contraband. In reaching this result, the Court recognized that "some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment" (452 U.S. at 697) even though supported by less than probable cause. Moreover, the Court emphasized (id. at 700; footnote omitted) that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry (v. Ohio, 392 U.S. 1 (1968)) and Adams (v. Williams, 407 U.S. 143 (1972)). The Court explained (id. at 700 n.12): If the purpose underlying a Terry stop -- investigating possible criminal activity -- is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams. The Court also quoted with approval Professor La Fave's comments on the permissible scope of investigative detention based on reasonable suspicion: "It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, locating and examining objects abandoned by the suspect, or talking with other people. If it is known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime. There is no reason to conclude that any investigative methods of the type just listed are inherently objectionable; they might cast doubt upon the reasonableness of the detention, however, if their use makes the period of detention unduly long or involves moving the suspect to another locale." Michigan v. Summers, supra, 452 U.S. at 700-701 n.12, quoting 3 W. LaFave, Search and Seizure Section 9.2 at 36-37 (1978). Professor LaFave's summary of the governing principles concludes that the permissibility of extending a Terry stop should turn on "whether the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon and whether it is rather essential to the investigation that the suspect's presence be continued during that interval." Id. at 40. See Michigan v. Summers, supra, 452 U.S. at 701-702 n.14. Thus, while Summers itself involved the detention of a suspect in the couse of conducting a warrant-authorized search of his premises, the Court's analysis clearly demonstrates that a law enforcement officer making a valid Terry stop may also lawfully detain the suspect for more than a brief moment if such action is reasonably required in order to pursue a legitimate avenue of investigation. The Court's recent decision in United States v. Place, No. 81-1617 (June 20, 1983), reaffirms these principles. /9/ Although the Court held there that "on the facts presented" (slip op. 13) the 90-minute investigative detention was unduly prolonged, it once again acknowledged "the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and Brignoni-Ponce" (slip op. 12). To be sure, the Court recognized (as do we) that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion" (slip op. 12-13). But the Court pointedly "decline(d) to adopt any outside time limitation for a permissible Terry stop" (slip op. 13), explaining that adoption of a "rigid time limitation," such as the 20 minute period allowed by the American Law Institute's Model Code of Pre-Arraignment Procedure, would be unwise because it "would undermine the * * * important need to allow authorities to graduate their responses to the demands of any particular situation." Slip op. 13 & n.10. Moreover, the Court emphasized that the reasonableness of a given period of detention cannot be assessed without regard to the diligence -- or lack thereof -- of police in pursuing their investigation by reasonably available means. Slip op. 13. The courts of appeals have also upheld the detention of a suspect beyond a momentary stop in a number of different settings, where the justification for extending the detention outweighed the intrusion on the suspect's privacy. For example, in United States v. Short, 570 F.2d 1051, 1054-1055 (D.C. Cir. 1978), the court held that it was permissible for the police to detain a burglary suspect, whom they lacked probable cause to arrest, for the purpose of transporting the suspect to the scene of the burglary for possible identification by the victim. Accord, United States v. Wylie, 569 F.2d 62, 70-71 (D.C. Cir. 1977), cert. denied, 435 U.S. 944 (1978). And in United States v. O'Looney, 544 F.2d 385, 389 (9th Cir.), cert. denied, 429 U.S. 1023 (1976), the court concluded that the Fourth Amendment permitted the police to detain a person suspected of smuggling firearms for the period necessary to obtain the presence of a law enforcement officer with specific expertise in conducting investigations of such offenses. Accord, United States v. Moore, 638 F.2d 1171, 1174 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981) (approving investigative detentions necessary to obtain presence of police officers with special expertise; collecting cases.) /10/ b. The decision of the court of appeals is plainly contrary to the foregoing teaching of this Court, and to the above-cited decisions of other courts of appeals. In light of the Court's unequivocal statements in Summers and Place that Terry, Adams and Brignoni-Ponce do not mark the outer perimeter of permissible investigation, the court of appeals' reliance upon those very cases to establish a rigid limit of a few minutes upon the duration of such detentions is clearly unwarranted. And the court of appeals' refusal to consider the law enforcement purposes to be served by the detention, the time needed reasonably to effectuate those purposes, or the circumstances of this case that prolonged respondents' detention is contrary to the explicit directions of this Court. Here the totality of the circumstances demonstrates the reasonableness of respondents' detention. First, the court of appeals did not dispute that at the time he asked Officer Thrasher to signal respondents' vehicles to stop, Agent Cooke had a reasonable suspicion that respondents were engaged in illegal activity. Cooke observed the vehicles during the early morning hours as they travelled in tandem for 21 miles in an area near the coast frequented by drug traffickers. In addition, the pickup truck appeared to be heavily loaded and the windows of the camper were covered. Finally, respondents' vehicles took evasive actions and began speeding after Thrasher, in his marked police car, joined Agent Cooke in following respondents. Based on these facts, Cooke acted properly in attempting to stop respondents' vehicles for the limited purpose of questioning respondents about their activities and attempting to ascertain whether the pickup was loaded with drugs. /11/ It is similarly clear that the 30 to 40 minute period of detention between the initial stopping of respondent Sharpe and his arrest, and, a fortiori, the roughly 25 minutes elapsed in respondent Savage's case, was entirely reasonable under the circumstances. Agent Cooke diligently pursued his investigation, seeking assistance when necessary from other law enforcement agencies, both state and local. See pages 3-4, supra. Compare United States v. Place, supra, slip op. 13 & n.9; Florida v. Royer, No. 80-2146 (Mar. 23, 1983), slip op. 14-15 (opinion of White, J.). This diligent pursuit of the investigation strongly supports a determination of reasonableness. United States v. Place, supra, slip op. 13; Michigan v. Summers, supra, 452 U.S. at 701-702 n.14. Moreover, as Judge Russell observed in his dissent below (App. B, infra, 29a-31a, 38a), the delay found excessive by the majority was no fault of the officers but was almost entirely attributable to the evasive action taken by respondent Savage, which resulted in respondents' being stopped a half-mile apart by different law enforcement officers. The fact that respondents were stopped at separate locations made it impossible for Cooke, the only DEA agent on the scene, to inspect the pickup truck, which was the focus of his suspicion, and to question its driver, respondent Savage, until police reinforcements arrived to maintain the status quo with respect to respondent Sharpe. /12/ Cooke's unsuccessful efforts to contact Officer Thrasher by radio, his wait for reinforcements, and his trip from Sharpe's Pontiac to the pickup, all necessitated by the separation, consumed most of the period -- perhaps 20-25 minutes (I Tr. 103). Once Cooke finally reached the pickup, less than 10 minutes elapsed before he discovered the marijuana, placed Savage under arrest, and returned to arrest Sharpe (I Tr. 105, 114, 120). /13/ In short, the officers' actions in stopping respondents and detaining them for a limited period to pursue a legitimate investigation into suspected criminal conduct is simply an example of good police work. The officers' "graduate(d) * * * responses to the demands of (the) particular situation" (United States v. Place, supra, slip op. 13 n.10) plainly meet the Fourth Amendment's standard of reasonableness. /14/ 2. Even if the court of appeals were correct in concluding that the duration of the detentions rendered the seizures of respondents unreasonable under the Fourth Amendment, it erred in holding that the marijuana discovered in respondent Savage's pickup truck was a suppressible fruit of the improper duration of the detention. In our view, this holding stems from an erroneous application of established Fourth Amendment principles to the facts at hand. In determining whether evidence is a "fruit" of illegal conduct, the Court has rejected a simplistic test of "but for" causation. Wong Sun v. United States, 371 U.S. 471, 487-488 (1963). See also United States v. Ceccolini, 435 U.S. 268, 274 (1978); Brown v. Illinois, 422 U.S. 590, 598, 603 (1975). In Wong Sun (371 U.S. at 487-488) the Court declined to "hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." Rather, the Court explained (ibid., quoting J. Maguire, Evidence of Guilt 221 (1959) (emphasis added)): the more apt question in such a case is "whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." In this case, the discovery of the marijuana in the pickup did not in any meaningful way result from the fact that respondents' detentions were extended beyond a couple of minutes. The court of appeals reasoned that Agent Cooke's discovery of the marijuana was a product of the length of respondents' detention because "Cooke obviously would not have had the opportunity to smell the raw marijuana, and thus would have had no reason to search the truck, had Savage not been detained for longer than constitutionally permissible under an investigatory stop" (App. B, infra, 22a). However, this is precisely the sort of "but for" test that this Court has consistently rejected. A proper fruits analysis should have focused instead on whether the information establishing that there was probable cause to believe that the pickup contained marijuana was obtained by Agent Cooke through exploitation of the hypothetically overlong detentions of respondents. This entails a separate inquiry as to each respondent. a. With respect to respondent Savage, we submit that the information that a strong odor of marijuana emanated from the pickup truck was immediately discoverable, and thus, although discovery of that information was delayed, the information itself should be deemed a fruit of the lawful stop and not of any allegedly unlawful prolongation of the detention. This is not a case in which a time-consuming search was needed to uncover evidence. In such a case the evidence may plausibly be said to result from "exploitation" of the illegality -- the duration of the detention. But at the time of the initial stop of respondent Savage's pickup, Agent Cooke was well acquainted with the distinctive odor of marijuana; the extended nature of Sharpe's detention clearly did not enhance Cooke's ability to smell and accurately to identify that odor. See United States v. Crews, 445 U.S. 463, 472 (1980). Moreover, there is no reason to suppose that the odor of marijuana from the pickup became more pronounced, and thus more easily discoverable, as a result of the prolonged detention. Accordingly, as in Michigan v. Summers, supra, 452 U.S. at 701 (footnote omitted), this is not a situation in which suppression is warranted because the detention was "unduly prolonged in order to gain more information"; instead, the information was "obtained through (detention of the readily apparent odor of marijuana) and not through the detention." This case is readily distinguishable in this respect from other situations in which an unlawful detention has been held to taint the discovery of evidence. For instance, in Dunaway v. New York, supra, given the finding of a de facto arrest based on the maintenance of interrogation in custodial conditions, it was not unreasonable (in the absence of an intervening act of free will) to treat a confession secured at the end of the period of detention as evidence arrived at by exploitation of the unreasonable conditions and duration of the detention. Similarly, in Floria v. Royer, supra, where the evidence was found through a consent to search personal luggage given while an individual was unlawfully detained, it was reasonable to conclude that the intrusiveness of the detention contributed to the defendant's consent. But what was discovered here was real evidence. Thus the fruits analysis here is not to be influenced by a possibility that the duration of detention contributed to ensuing statements or actions of the defendant. The court of appeals' analytical error has considerable theoretical importance and has significant adverse practical implications for administration of the exclusionary rule. Under the analysis employed by the court of appeals, any real evidence found at the scene of an unlawfully extended investigative detention apparently will be deemed tainted; it is difficult to conceive of any circumstances that would be recognized as dispelling the taint. There is no warrant for this sweeping application of the exclusionary rule. b. As to the detention of respondent Sharpe, the court of appeals' confusion is much clearer. The discovery of the marijuana was a product of the stop of Savage (albeit not of the duration of that stop); it plainly was not the result (under any standard of causation) of any official impropriety connected with the detention of respondent Sharpe. Accordingly, the marijuana may in no event properly be suppressed (as to either respondent) on the basis of the somewhat greater duration of the detention of Sharpe (see also page 18 note 13, supra). /15/ Moreover, the discovery of the marijuana following Savage's detention "invaded no right of privacy of person * * * which would entitle (Sharpe) to object to its use at his trial." Wong Sun v. United States, supra, 371 U.S. at 492. /16/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General JOHN FICHTER DE PUE Attorney SEPTEMBER 1983 /1/ This Court's order granting our prior petition for a writ of certiorari, vacating the prior judgments of the court of appeals, and remanding the case to the court of appeals is reported at 457 U.S. 1127. /2/ As explained below (page 10, infra), upon remand from this Court the court of appeals simply deleted certain portions of its original opinion and readopted the balance. It is that disposition that is set forth in the opinion after remand reproduced in App. A, infra. For the convenience of the Court, in reproducing the original opinion of the court of appeals in App. B, infra, we have placed the passages subsequently deleted in brackets. /3/ The charges against Sharpe's companion were ultimately dismissed (App. B, infra, 16a). After Cooke left the location at which the pickup truck had been stopped, Savage attempted to bribe Thrasher, stating that if Thrasher would remove Savage's handcuffs and permit him to escape, "the owner of the truck would send (Thrasher) thirty thousand dollars" (I Tr. 154). /4/ The court of appeals deemed it unnecessary to decide whether Sharpe's driver's license and the bill of sale covering the truck should have been suppressed (App. B, infra, 22a n.2). /5/ See 81-1736 Pet. App. 39a-40a. /6/ Justice Stevens, joined by Justices Brennan and Marshall, dissented from this disposition, stating (457 U.S. at 1128): The issue presented in this case is whether a warrantless search (of respondent's vehicle) was itself legitimate. Since our opinion in United States v. Ross sheds no light on the proper disposition of the case, I respectfully dissent. /7/ The majority declined the urging of the dissent to reconsider its "principal holding or to reargue the same issues that were addressed in detail in the original majority and dissenting opinions," reasoning that its action complied with this Court's mandate (App. A, infra, 2a n.1). /8/ Prior to entry of the court of appeals' judgments on remand, the opinions were circulated to the full court. A suggestion for sua sponte en banc reconsideration was made by a member of the court but failed to garner the necessary majority vote. Neverthless, the opinions on remand reflect that the full court was divided five to four in favor of the decision of the panel majority (App. A, infra, 3a, 4a, 13a). /9/ Place was decided ten days prior to filing of the decision below, and the court of appeals' opinion reflects no awareness of Place (see App. A, infra, 10a-11a (Russell, J., dissenting, noting grant of certiorari in Place)), probably because the court of appeals' opinion was prepared well in advance of filing (see id. at 3a). The court of appeals' failure to consider Michigan v. Summers, noted in Judge Russell's original dissent (App. B, infra, 28a, 37a), is less readily explicable. /10/ See also United States v. Richards, 500 F.2d 1025, 1029 (9th Cir. 1974), cert. denied, 420 U.S. 924 (1975) (approving detention of two persons suspected of drug smuggling for more than an hour while DEA agents checked with the Federal Aviation Administration to determine whether the aircraft in which the suspects were about to depart was stolen); United States v. Mayes, 524 F.2d 803, 805-808 (9th Cir. 1975) (upholding detention of suspected drug smuggler for an hour and a half while Border Patrol agents attempted to verify or disprove suspects' exculpatory explanation concerning his activities); United States v. Contreras-Diaz, 575 F.2d 740, 745 (9th Cir.), cert. denied, 439 U.S. 855 (1978) (inability of suspected illegal aliens to furnish valid identification justified their prolonged detention to permit a check with the Border Patrol). /11/ We note in addition that Officer Thrasher apparently had probable cause to arrest both respondents for speeding. Thus, there can be no question as to the propriety of the initial stop of either respondent. /12/ Consideration of the alternatives open to Agent Cooke is instructive. He could simply have ignored his by then substantially heightened suspicions and permitted Sharpe to go -- a course of action that many reasonable people would surely view as quite irresponsible in the circumstances. Or, assuming that his vehicle was equipped to transport respondent Sharpe (and his passenger) securely, and that it was prudent to leave Sharpe's Pontiac unguarded, Agent Cooke might have taken Sharpe to the location where Officer Thrasher had stopped Savage. But even if this were otherwise feasible, it would have required handcuffing Sharpe, placing him in a locked police car, and transporting him some distance -- thereby elevating the intrusive character of the detention. And, although we would argue otherwise, the very act of transporting Sharpe might itself support a claim that investigative detention had become a custodial arrest. See Florida v. Royer, supra, slip op. 13 (opinion of White, J.). Plainly, the consequences of these alternatives suggest that the course adopted by Agent Cooke was at least reasonable, if not the only one open to him under the Fourth Amendment. /13/ Any time elapsed while Agent Cooke returned to the location where Sharpe was waiting is irrelevant for the additional reason that probable cause to arrest him had, by that point, arisen. /14/ The court of appeals' reliance (App. B, infra, 20a) on Dunaway v. New York, 442 U.S. 200 (1979), is misplaced. Dunaway did not hold that a detention that is extended by circumstances beyond the control of the officers is unreasonable under the Fourth Amenment. In Dunaway, police, acting on information (not amounting to probable cause) that implicated Dunaway in a murder, went looking for him and, after locating him at a neighbor's house, placed him in a police car and brought him to a police station without his consent. There, after being given Miranda warnings, Dunaway was interrogated in a custodial setting for a period of an hour, at which point he confessed to the crime. Although Dunaway had not been formally arrested and charged with a crime, the Court held that his detention without probable cause was unlawful because it was "in important respects indistinguishable from a traditional arrest" (442 U.S. at 212). In support of this characterization the Court noted the extended interrogation to which Dunaway was subjected, the involuntary transfer to the police station, and the use of an interrogation room, as well as the fact that he was not told he was free to go and in fact would not have been allowed to depart had he attempted to do so. Here, by contrast, the detention was considerably briefer than in Dunaway, and its length was not attributable to the deliberate actions of the officers. Moreover, respondents were not transported to a police station and placed in an interrogation room, but were questioned briefly when they were stopped. The holding of Florida v. Royer, supra, that the investigative detention there had gone beyond permissible bounds is similarly distinguishable. The Court's decision there rests upon the use of unnecessarily intrusive means of investigation and conditions of restraint (see slip op. 11-12 & n.9, 13-15 (opinion of White, J.)) that have no analogue here. Moreover, the detention in that case lasted approximately 15 minutes -- far more than the few minutes the court of appeals thought permissible here -- and yet the plurality opinion did not suggest any illegality in the duration of the stop. Rather Justice White emphasized that the "scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case," adding that "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop" (slip op. 8-9). As we have explained above, the actions of the officers in this case meet these criteria. The other court of appeals decisions cited by the majority below (App. B, infra, 21a) do not support the result reached here. In United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1980), cert. denied, 453 U.S. 914 (1981), the court held that the defendant's 20-minute detention was unreasonable in the absence of probable cause, specifically noting that the defendant "was not questioned briefly where he was found. He was placed in the back seat of a police car for twenty minutes." Id. at 1267. In United States v. Perez-Esparza, 609 F.2d 1284 (9th Cir. 1979), the defendant was removed from his car and taken to a Border Patrol office, where he was detained for three hours in an interrogation room pending the arrival of DEA agents. Finally, in United States v. Miller, 546 F.2d 251 (8th Cir. 1976), the court held that a gun discovered during a frisk of the defendant should have been suppressed because the defendant was "seized and wrongfully detained for an unnecessarily long period against his will" (id. at 253; emphasis supplied), and also because the officer did not have a sufficiently particularized suspicion that the defendant was carrying a weapon or otherwise posed a threat to the officer (id. at 254). While we do not necessarily agree with the results in these cases, none of them analyzes the propriety of the detention solely in terms of duration. Moreover, when contrasted with the decisions discussed above at pages 14-15, supra, these decisions reflect the considerable uncertainty that surrounds this area of the law. /15/ Indeed, the court of appeals' fruits analysis appears to focus exclusively upon the question whether the detention of Savage tainted the discovery of the marijuana (App. B, infra, 22a). The court of appeals' conclusion that Sharpe's detention was unlawful may accordingly be surplusage. But it is not clear that the court of appeals' determination that the detention of Savage was unlawful was based entirely on the duration of his detention. /16/ For the same reason, of course, if suppression were required solely because of the duration of Sharpe's detention, it would not inure to the benefit of respondent Savage. Appendix Omitted