source: Caselaw Access Project

author: CHIEF Justice Rehnquist Justice Stevens, Justice Kennedy,

license: Public Domain

text:
    MARYLAND v. WILSON
    No. 95-1268.
    Argued December 11, 1996
    Decided February 19, 1997

      J Joseph Curran, Jr., Attorney General of Maryland, argued the cause for petitioner. With him on the briefs were Gary E. Bair, Mary Ellen Barbera, and Kathryn Grill Graeff, Assistant Attorneys General.

      Byron L. Warnken, by appointment of the Court, 519 U. S. 804 (1996), argued the cause and filed a brief for respondent.

      Attorney General Reno argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, David C. Frederick, and Nina Goodman

      Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas and Stuart A. Cole, Assistant Attorneys General, joined by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert Butterworth of Florida, James E. Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. leyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon, Thomas Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Condon of South Carolina, Mark W Barnett of South Dakota,
        Charles W. Burson of Tennessee, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Julio A. Brady of the U. S. Virgin Islands, Christine 0. Grego-ire of Washington, Darrell McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, Robert Wennerholm, James P. Manek, John Kaye, Richard M. Weintraub, and Bernard J. Farber; for the National Association of Police Organizations, Inc., by William J. Johnson; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

In this case we consider whether the rule of Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam), that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well. We hold that it does.

At about 7:30 p.m. on a June evening, Maryland state trooper David Hughes observed a passenger car driving southbound on 1-95 in Baltimore County at a speed of 64 miles per hour. The posted speed limit was 55 miles per hour, and the car had no regular license tag; there was a torn piece of paper reading “Enterprise Rent-A-Car” dangling from its rear. Hughes activated his lights and sirens, signaling the car to pull over, but it continued driving for another mile and a half until it finally did so.

During the pursuit, Hughes noticed that there were three occupants in the car and that the two passengers turned to look at him several times, repeatedly ducking below sight level and then reappearing. As Hughes approached the car on foot, the driver alighted and met him halfway. The driver was trembling and appeared extremely nervous, but nonetheless produced a valid Connecticut driver’s license. Hughes instructed him to return to the car and retrieve the rental documents, and he complied. During this encounter, Hughes noticed that the front-seat passenger, respondent Jerry Lee Wilson, was sweating and also appeared extremely nervous. While the driver was sitting in the driver’s seat looking for the rental papers, Hughes ordered Wilson out of the car.

When Wilson exited the car, a quantity of crack cocaine fell to the ground. Wilson was then arrested and charged with possession of cocaine with intent to distribute. Before trial, Wilson moved to suppress the evidence, arguing that Hughes’ ordering him out of the ear constituted an unreasonable seizure under the Fourth Amendment. The Circuit Court for Baltimore County agreed, and granted respondent’s motion to suppress. On appeal, the Court of Special Appeals of Maryland affirmed, 106 Md. App. 24, 664 A. 2d 1 (1995), ruling that Pennsylvania v. Mimms does not apply to passengers. The Court of Appeals of Maryland denied certiorari. 340 Md. 502, 667 A. 2d 342 (1995). We granted certiorari, 518 U. S. 1003 (1996), and now reverse.

In Mimms, we considered a traffic stop much like the one before us today. There, Mimms had been stopped for driving with an expired license plate, and the officer asked him to step out of his car. When Mimms did so, the officer noticed a bulge in his jacket that proved to be a .38-caliber revolver, whereupon Mimms was arrested for carrying a concealed deadly weapon. Mimms, like Wilson, urged the suppression of the evidence on the ground that the officer’s ordering him out of the car was an unreasonable seizure, and the Pennsylvania Supreme Court, like the Court of Special Appeals of Maryland, agreed.

We reversed, explaining that “[t]he touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security,’ ” 434 U. S., at 108-109 (quoting Terry v. Ohio, 392 U. S. 1, 19 (1968)), and that reasonableness “depends ‘on a balance between the public interest and the individual’s right to personal security free • from arbitrary interference by law officers,’ ” 434 U. S., at 109 (quoting United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975)). On the public interest side of the balance, we noted that the State “freely concede[d]” that there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was the officer’s “practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter of course” as a “precautionary measure” to protect the officer’s safety. 434 U. S., at 109-110. We thought it “too plain for argument” that this justification — officer safety — was “both legitimate and weighty.” Id., at 110. In addition, we observed that the danger to the officer of standing by the driver’s door and in the path of oncoming traffic might also be “appreciable.” Id., at 111.

On the other side of the balance, we considered the intrusion into the driver’s liberty occasioned by the officer’s ordering him out of the car. Noting that the driver’s car was already validly stopped for a traffic infraction, we deemed the additional intrusion of asking him to step outside his car “de minimis.” Ibid. Accordingly, we concluded that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable seizures.” Id., at 111, n. 6.

Respondent urges, and the lower courts agreed, that this per se rule does not apply to Wilson because he was a passenger, not the driver. Maryland, in turn, argues that we have already implicitly decided this question by our statement in Michigan v. Long, 463 U. S. 1032 (1983), that “[i]n [Mimms], we held that police may order persons out of an automobile during a stop for a traffic violation,” id., at 1047-1048 (emphasis added), and by Justice Powell’s statement in Rakas v. Illinois, 439 U. S. 128 (1978), that “this Court determined in [Mimms] that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made,” id., at 155, n. 4 (Powell, J., joined by Burger, C. J., concurring) (emphasis added). We agree with respondent that the former statement was dictum, and the latter was contained in a concurrence, so that neither constitutes binding precedent.

We must therefore now decide whether the rule of Mimms applies to passengers as well as to drivers. On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994). In the case of passengers, the danger of the officer’s standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.

On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver. 452

We think that our opinion in Michigan v. Summers, 452 U. S. 692 (1981), offers guidance by analogy here. There the police had obtained a search warrant for contraband thought to be located in a residence, but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended “upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search.” Id., at 695. In holding as it did, the Court said:

“Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id., at 702-703 (footnote omitted).

In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the .* passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

The judgment of the Court of Special Appeals of Maryland is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Kennedy joins,

dissenting.

In Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per cu-riam), the Court answered the “narrow question” whether an “incremental intrusion” on the liberty of a person who had been lawfully seized was reasonable. Id., at 109. This case, in contrast, raises a separate and significant question concerning the power of the State to make an initial seizure of persons who are not even suspected of having violated , the law.

My concern is not with the ultimate disposition of this particular case, but rather with the literally millions of other cases that will be affected by the rule the Court announces. Though the question is not before us, I am satisfied that— under the rationale of Terry v. Ohio, 392 U. S. 1 (1968) — if a police officer conducting a traffic stop has an articulable suspicion of possible danger, the officer may order passengers to exit the vehicle as a defensive tactic without running afoul of the Fourth Amendment. Accordingly, I assume that the facts recited in the majority’s opinion provided a valid justification for this officer’s order commanding the passengers to get out of this vehicle. But the Court’s ruling goes much further. It applies equally to traffic stops in which there is not even a scintilla of evidence of any potential risk to the police officer. In those cases, I firmly believe that the Fourth Amendment prohibits routine and arbitrary seizures of obviously innocent citizens.

I

The majority suggests that the personal liberty interest at stake here, which is admittedly “stronger” than that at issue in Mimms, is outweighed by the need to ensure officer safety. Ante, at 413, 414-415. The Court correctly observes that “traffic stops may be dangerous encounters.” Ante, at 413. The magnitude of the danger to police officers is reflected in the statistic that, in 1994 alone, “there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops.” Ibid. There is, unquestionably, a strong public interest in minimizing the number of such assaults and fatalities. The Court’s statistics, however, provide no support for the conclusion that its ruling will have any such effect.

Those statistics do not tell us how many of the incidents involved passengers. Assuming that many of the assaults were committed by passengers, we do not know how many occurred after the passenger got out of the vehicle, how many took place while the passenger remained in the vehicle, or indeed, whether any of them could have been prevented by an order commanding the passengers to exit. There is no indication that the number of assaults was smaller in jurisdictions where officers may order passengers to exit the vehicle without any suspicion than in jurisdictions where they were then prohibited from doing so. Indeed, there is > no indication that any of the assaults occurred when there •was a complete absence of any articulable basis for concern about the officer’s safety — the only condition under which I would hold that the Fourth Amendment prohibits an order commanding passengers to exit a vehicle. In short, the statistics are as consistent with the hypothesis that ordering passengers to get out of a vehicle increases the danger of assault as with the hypothesis that it reduces that risk.

Furthermore, any limited additional risk to police officers must be weighed against the unnecessary invasion that will be imposed on innocent citizens under the majority’s rule in the tremendous number of routine stops that occur each day. We have long recognized that “[bjecause of the extensive regulation of motor vehicles and traffic . . . the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.” Cady v. Dombrowski, 413 U. S. 433, 441 (1973). Most traffic stops involve otherwise law-abiding citizens who have committed minor traffic offenses. A strong interest in arriving at a destination — to deliver a patient to a hospital, to witness a kickoff, or to get to work on time — will often explain a traffic violation without justifying it. In the aggregate, these stops amount to significant law enforcement activity.

Indeed, the number of stops in which an officer is actually at risk is dwarfed by the far greater number of routine stops. If Maryland’s share of the national total is about average, the State probably experiences about 100 officer assaults each year during traffic stops and pursuits. Making the unlikely assumption that passengers are responsible for one-fourth of the total assaults, it appears that the Court’s new rule would provide a potential benefit to Maryland officers in only roughly 25 stops a year. These stops represent a minuscule portion of the total. In Maryland alone, there are something on the order of one million traffic stops each year. Assuming that there are passengers in about half of the cars stopped, the majority’s rule is of some possible advantage to police in only about one out of every twenty thousand traffic stops in which there is a passenger in the car. And, any benefit is extremely marginal. In the overwhelming majority of cases posing a real threat, the officer would almost certainly have some ground to suspect danger that would justify ordering passengers out of the ear.

In contrast, the potential daily burden on thousands of innocent citizens is obvious. That burden may well be “minimal” in individual cases. Ante, at 415. But countless citizens who cherish individual liberty and are offended, embarrassed, and sometimes provoked by arbitrary official commands may well consider the burden to be significant. In all events, the aggregation of thousands upon thousands of petty indignities has an impact on freedom that I would characterize as substantial, and which in my view clearly outweighs the evanescent safety concerns pressed by the majority.

II

The Court concludes today that the balance of convenience and danger that supported its holding in Mimms applies to passengers of lawfully stopped cars as well as drivers. In Mimms itself, however, the Court emphasized the fact that the intrusion into the driver’s liberty at stake was “occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car.” 434 U. S., at 111. The conclusion that “this additional intrusion can only be described as de minimis” rested on the premise that the “police have already lawfully decided that the driver shall be briefly detained.” Ibid.

In this case as well, the intrusion on the passengers’ liberty occasioned by the initial stop of the vehicle is not challenged. That intrusion was a necessary by-product of the lawful detention of the driver. But the passengers had not yet been seized at the time the car was pulled over, any more than a traffic jam caused by construction or other state-imposed delay not directed at a particular individual constitutes a seizure of that person. The question is whether a passenger in a lawfully stopped car may be seized, by an order to get out of the vehicle, without any evidence whatsoever that he or she poses a threat to the officer or has committed an offense.

To order passengers about during the course of a traffic stop, insisting that they exit and remain outside the car, can hardly be classified as a de minimis intrusion. The traffic violation sufficiently justifies subjecting the driver to detention and some police control for the time necessary to conclude the business of the stop. The restraint on the liberty of blameless passengers that the majority permits is, in contrast, entirely arbitrary. or

In my view, wholly innocent passengers in a taxi, bus, or private car have a constitutionally protected right to decide whether to remain comfortably seated within the vehicle rather than exposing themselves to the elements and the observation of curious bystanders. The. Constitution should not be read to permit law enforcement officers to order innocent passengers about simply because they have the misfortune to be seated in a car whose driver has committed a minor traffic offense.

Unfortunately, the effect of the Court’s new rule on the law may turn out to be far more significant than its immediate impact on individual liberty. Throughout most of our history the Fourth Amendment embodied a general rule requiring that official searches and seizures be authorized by a warrant, issued “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” During the prohibition era, the exceptions for warrantless searches supported by probable cause started to replace the general rule. In 1968, in the landmark “stop and frisk” case Terry v. Ohio, 392 U. S. 1 (1968), the Court placed its stamp of approval on seizures supported by specific and articulable facts that did not establish probable cause. The Court crafted Terry as a narrow exception to the general rule that “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Id., at 20. The intended scope of the Court’s major departure from prior practice was reflected in its statement that the “demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Id., at 21, n. 18; see also id., at 27. In the 1970’s, the Court twice rejected attempts to justify suspicionless seizures that caused only “modest” intrusions on the liberty of passengers in automobiles. United States v. Brignoni-Ponce, 422 U. S. 873, 879-880 (1975); Delaware v. Prouse, 440 U. S. 648, 662-663 (1979). Today, however, the Court takes the unprecedented step of authorizing seizures that are unsupported by any individualized suspicion whatsoever.

The Court’s conclusion seems to rest on the assumption that the constitutional protection against “unreasonable” seizures requires nothing more than a hypothetically rational basis for intrusions on individual liberty. How' far this ground-breaking decision will take us, I do not venture to predict. I fear, however, that it may pose a more serious threat to individual liberty than the Court realizes.

I respectfully dissent.

Justice Kennedy,

dissenting.

I join in the dissent by Justice Stevens and add these few observations.

The distinguishing feature of our criminal justice system is its insistence on principled, accountable decisionmaking in individual cases. If a person is to be seized, a satisfactory explanation for the invasive action ought to be established by an officer who exercises reasoned judgment under all the circumstances of the case. This principle can be accommodated even where officers must make immediate decisions to ensure their own safety.

Traffic stops, even for minor violations, can take upwards of 30 minutes. When an officer commands passengers innocent of any violation to leave the vehicle and stand by the side of the road in full view of the public, the seizure is serious, not trivial. As Justice Stevens concludes, the command to exit ought not to be given unless there are objective circumstances making it reasonable for the officer to issue the order. (We do not have before us the separate question whether passengers, who, after all, are in the car by choice, can be ordered to remain there for a reasonable time while the police conduct their business.)

The requisite showing for commanding passengers to exit need be no more than the existence of any circumstance justifying the order -in the interests of the officer’s safety or to facilitate a lawful search or investigation. As we have acknowledged for decades, special latitude is given to the police in effecting searches and seizures involving vehicles and their occupants. See, e. g., Chambers v. Maroney, 399 U. S. 42 (1970); New York v. Class, 475 U. S. 106 (1986); New York v. Belton, 453 U. S. 454 (1981). Just last Term we adhered to a rule permitting vehicle stops if there is some objective indication thát a violation has been committed, regardless of the officer’s real motives. See Whren v. United States, 517 U. S. 806 (1996). We could discern no other, workable rule. Even so, we insisted on a reasoned explanation for the stop.

The practical effect of our holding in Whren, of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today’s holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police. If the command to exit were to become commonplace, the Constitution would be diminished in a most public way. As the standards suggested in dissent are adequate to protect the safety of the police, we ought not to suffer so great a loss.

Since a myriad of circumstances will give a cautious officer reasonable grounds for commanding passengers to leave the vehicle, it might be thought the rule the Court adopts today will be little different in its operation than the rule offered in dissent. It does no disservice to police officers, however, to insist upon exercise of reasoned judgment. Adherence to neutral principles is the very premise of the rule of law the police themselves defend with such courage and dedication.

Most officers, it might be said, will exercise their new power with discretion and restraint; and no doubt this often will be the case. It might also be said that if some jurisdictions use today’s ruling to require passengers to exit as a matter of routine in every stop, citizen complaints and political intervention will call for an end to the practice. These arguments, however, would miss the point. Liberty comes not from officials by grace but from the Constitution by right.

For these reasons, and with all respect for the opinion of the Court, I dissent.

       Respondent argues that, because we have generally eschewed bright-line rules in the Fourth Amendment context, see, e. g., Ohio v. Robinette, ante, p. 33, we should not here conclude that passengers may constitutionally be ordered out of lawfully stopped vehicles. But, that we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to as well.

       Justice Stevens’ dissenting opinion points out, post, at 416, that these statistics are not further broken down as to assaults by passengers and assaults by drivers. It is, indeed, regrettable that the empirical data on a subject such as this are sparse, but we need not ignore the data which do exist simply because further refinement would be even more helpful. Justice Stevens agrees that there is “a strong public interest in minimizing” the number of assaults on law officers, ibid., and we believe that our holding today is more likely to accomplish that result than would be the case if his views were to prevail.

       Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop. But respondent was subjected to no detention based on the stopping of the ear once he had left it; his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute. The question which Maryland wishes answered, therefore, is not presented by this ease, • and we express no opinion upon it.

       The Maryland Court of Special Appeals held, inter alia, that the State had not properly preserved this claim during the suppression hearing. See App. to Pet. for Cert. 4a. The State similarly fails to press the point here. Pet. for Cert. 4, n. 1; Brief for Petitioner 4, n. 1. The issue is therefore not before us, and I am not free to concur in the Court’s judgment on this alternative ground. See Caldwell v. Mississippi, 472 U. S. 320, 327 (1985); this Court’s Rule 14.1(a).

       1 am assuming that in the typical case the officer would not order ' passengers out of a vehicle until after he had stopped his own ear, exited, and arrived at a position where he could converse with the driver. The only way to avoid all risk to the officer, I suppose, would be to adopt a routine practice of always issuing an order through an amplified speaker commanding everyone to get out of the stopped ear before the officer exposed himself to the possibility of a shot from a hidden weapon. Given the predicate for the Court’s ruling — that an articulable basis for suspecting danger to the officer provides insufficient protection against the possibility of a surprise assault — we must assume that every passenger, no matter how feeble or infirm, must be prepared to accept the “petty indignity” of obeying an .arbitrary and sometimes demeaning command issued over a loud speaker.

       See also New York v. Class, 475 U. S. 106, 113 (1986); South Dakota v. Opperman, 428 U. S. 364, 368 (1976); cf. Whren v. United States, 517 U. S. 806, 810, 818 (1996).

         This figure may in fact be smaller. The majority’s data aggregate assaults committed during “[t]raffic [pjursuits and [s]tops.” Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71 (1994). In those assaults that occur during the pursuit of a moving vehicle, it would obviously be impossible for an officer to order a passenger out of the car.

       Maryland had well over one million nontort motor vehicle cases during a 1-year period between 1994 and 1995. Annual Report of the Maryland Judiciary 80 (1994-1995). Though the State does not maintain a count of the number of stops performed each year, this figure is probably a fair rough proxy. The bulk of these cases likely represent a traffic stop, and this total does not include those stops in which the police officer simply gave the driver an informal reprimand. I presume that these figures are representative of present circumstances.

       The number of cases in which the command actually protects the officer from harm may well be a good deal smaller than the number in which a passenger is harmed by exposure to inclement weather, as well as the number in which an ill-advised command is improperly enforced. Consider, for example, the harm caused to a passenger by an inadequately trained officer after a command was issued to exit the vehicle in Board of Comm’rs of Bryan Cty. v. Brown, 67 F. 3d 1174 (CA5 1995), cert. granted, 517 U. S. 1154 (1996).

       Dissenting in Mimms, I criticized the Court’s reasoning and, indeed, predicted the result that the majority reaches today. 434 U. S., at 122-123.

       The order to the passenger is unquestionably a “seizure” within the meaning of the Fourth Amendment. As we held in United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975): “The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968).” mere

       Cf. Ybarra v. Illinois, 444 U. S. 85, 91 (1979) (“ ‘[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person’ ” (citing Sibron v. New York, 392 U. S. 40, 62-63 (1968))).

       See, e.g., Amos v. United States, 255 U. S. 313, 315 (1921); Weeks v. United States, 232 U. S. 383, 393 (1914).

       See, e. g., Carroll v. United States, 267 U. S. 132, 149 (1925) (automobile search). We had also recognized earlier in dictum the now well-established doctrine permitting warrantless searches incident to a valid arrest. See Weeks, 232 U. S., at 392; see also J. Landynski, Search and Seizure and the Supreme Court 87 (1966).

       Dissenting in Delaware v. Prouse, 440 U. S. 648 (1979), then-JusTlCE Rehnquist characterized the motorist’s interest in freedom from random stops as “only the most diaphanous of citizen interests.” Id., at 666.


author: Justice Stevens

text:
    REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL. v. DOE
    No. 95-1694.
    Argued December 2, 1996
    Decided February 19, 1997

      Charles A. Miller argued the cause for petitioners. With him on the briefs were Robert A. Long, Jr., John F. Duffy, James E. Holst, and Patrick J. O’Hern.

      Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger,. Deputy Solicitor General Bender, and Mark B. Stern.

      Richard Gayer, by appointment of the Court, 519 U. S. 804, argued the cause for respondent. With him on the brief was Madeleine Tress

         Richard Ruda and James I. Crowley filed a brief for the National Conference of State Legislatures et al. as amid curiae urging reversal.

        James K. T. Hunter, pro se, filed a brief as amicus curiae urging affirmance.

   Justice Stevens

delivered the opinion of the Court.

The narrow question presented by this case is whether the fact that the Federal Government has agreed to indemnify a state instrumentality against the costs of litigation, including adverse judgments, divests the state agency of Eleventh Amendment immunity. We hold that it does not.

I — I

Respondent, a citizen of New York, brought suit against the Regents of the University of California and several individual defendants in the United States District Court for the Northern District of California. Although he alleged other claims, we are concerned only with respondent’s breach-of-contract claim against the University. Doe contends that the University agreed to employ him as a mathematical physicist at the Lawrence Livermore National Laboratory, which the University operates pursuant to a contract with the Federal Government. According to his complaint, the University wrongfully refused to perform its agreement with Doe because it determined that he could not obtain the required security clearance from the Department of Energy (Department). Relying on Ninth Circuit cases holding that the University is “an arm of the state,” the District Court concluded that the Eleventh Amendment barred respondent from maintaining his breach-of-contract action in federal court.

The Court of Appeals for the Ninth Circuit reversed. Assuming that in some, but not all, of its functions the University is entitled to Eleventh Amendment immunity, the court addressed the narrow question whether it is an arm of the State when “acting in a managerial capacity” for the Liver-more Laboratory. Doe v. Lawrence Livermore National Laboratory, 65 F. 3d 771, 774 (1995). Although the majority applied “a five-factor analysis,” it emphasized that “liability for money judgment is the single most important factor in determining whether an entity is an arm of the state.” Ibid. The majority opinion gave decisive weight to the terms of the University’s agreement with the Department, which made it “clear that the Department, and not the State of California, is liable for any judgment rendered against the University in its performance of the Contract.” Ibid.

The dissenting judge did not take issue with the majority’s emphasis on the importance of the defendant’s liability for a money judgment, but he reasoned that the proper analysis should focus on the primary legal liability rather than the ultimate economic impact of the judgment. Noting that it was undisputed that a judgment against the University “is a legal obligation of the State of California,” id., at 777, he discounted the significance of the indemnitor’s secondary, or indirect, liability. For his conclusion, he relied on Ninth Circuit precedent suggesting that a State may not confer Eleventh Amendment immunity on an entity or individual who would otherwise not enjoy that immunity simply by volunteering to satisfy judgments against the entity, Durning v. Citibank, N. A., 950 F. 2d 1419, 1425, n. 3 (1991), or by passing a statute indemnifying individual officers from liability, Blaylock v. Schwinden, 862 F. 2d 1352, 1353-1354 (1988). “The question is not who pays in the end; it is who is legally obligated to pay the judgment that is being sought.” 65 F. 3d, at 777-778.

Because other Courts of Appeals agree with the dissent’s focus on legal rather than financial liability, we granted cer-tiorari to resolve the conflict. 518 U. S. 1004 (1996).

t — I HH

The Eleventh Amendment provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

It has long been settled that the reference to actions “against one of the United States” encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instru-mentalities. Poindexter v. Greenhow, 114 U. S. 270, 287 (1885); In re Ayers, 123 U. S. 443, 487 (1887); Smith v. Reeves, 178 U. S. 436, 438-439 (1900); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945). Thus, “when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Id., at 464.

When deciding whether a state instrumentality may invoke the State’s immunity, our eases have inquired into the relationship between the State and the entity in question. In making this inquiry, we have sometimes examined “the essential nature and effect of the proceeding,” ibid.; see also Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573, 576 (1946), and sometimes focused on the “nature of the entity created by state law” to determine whether it should “be treated as an arm of the State,” Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977).

Of course, the question whether a money judgment against a state instrumentality or official would be enforceable against the State is of considerable importance to any evaluation of the relationship between the State and the entity or individual being sued. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 45-51 (1994); Edelman v. Jordan, 415 U. S. 651, 663 (1974); Ford Motor, 323 U. S., at 464. In Hess, we evaluated the relationship between ah entity created by a bistate compact and the States that had joined to create that entity in order to determine whether that entity could properly be denominated as an “arm” of either of its founding States for the purposes of the Eleventh Amendment. In addition to considering the position of the bistate entity as a unique creature within the federal system, 513 U. S., at 39-42, and the nature of the claims at issue in the underlying proceeding, id., at 42, we focused particular attention on the fact that “both legally and practically” neither of the relevant States would have been obligated to pay a judgment obtained against the bistate entity, id., at 51-52.

Respondent seeks to detach the importance of a State’s legal liability for judgments against a state agency from its moorings as an indicator of the relationship between the State and its creation and to convert the inquiry into a formalistic question of ultimate financial liability. But none of the reasoning in our opinions lends support to the notion that the presence or absence of a third party’s undertaking to indemnify the agency should determine whether it is the kind of entity that should be treated as an arm of the State.

Just as with the arm-of-the-state inquiry, we agree with the dissenting judge in the Court of Appeals that with respect to the underlying Eleventh Amendment question, it is the entity’s potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant. Surely, if the sovereign State of California should buy insurance to protect itself against potential tort liability to pedestrians stumbling on the steps of the State Capitol, it would not cease to be “one of the United States.”

Accordingly, we reject respondent’s principal contention— that the Eleventh Amendment does not apply to this litigation because any award of damages would be paid by the Department of Energy, and therefore have no impact upon the treasury of the State of California. The Eleventh Amendment protects the State from the risk of adverse judgments even though the State may be indemnified by a third party.

Ill

As an alternative ground for affirmance, respondent invites us to reexamine the validity of the Ninth Circuit cases holding that the University is an arm of the State. He argues that we should look beyond the potential impact of an adverse judgment on the state treasury, and examine the extent to which the elected state government exercises “real, immediate control and oversight” over the University, see id., at 62 (O’Connor, J., dissenting), as well as the character of the function that gave rise to the litigation. Because the question we granted certiorari to address does not encompass this argument, we decline to address it.

The judgment of the Court of Appeals is reversed.

It is so ordered.

       See App. to Pet. for Cert. A-22, A-24, and A-28 (citing Thompson v. City of Los Angeles, 885 F. 2d 1439, 1442-1443 (1989), and Jackson v. Hayakawa, 682 F. 2d 1344, 1350 (1982)).

       The court relied on one case holding that Congress had abrogated the University’s immunity from suit for patent infringement, Genentech, Inc. v. Eli Lilly & Co., 998 F. 2d 931, 940-941 (CA Fed. 1993), cert. denied, 510 U. S. 1140 (1994), and another holding that the University had waived its immunity in some eases, In re Holoholo, 512 F. Supp. 889, 901-902 (Haw. 1981), for its conclusion that the “University is an enormous entity which functions in various capacities and which is not entitled to Eleventh Amendment immunity for all of its functions.” Doe v. Lawrence Livermore National Laboratory, 65 F. 3d 771, 775 (1995). We have no occasion to consider questions of waiver or abrogation of immunity in this ease. Nor is it necessary to decide whether there may be some state instrumen-talities that qualify as “arms of the State” for some purposes but not others.

       The five factors considered by the court in evaluating whether the University is an arm of the State were: “[1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has power to take property in its own name or only the name of the state, and [5] the corporate status of the entity.” Id., at 774.

         See Cronen v. Texas Dept. of Human Services, 977 F. 2d 934, 938 (CA5 1992) (“[T]he source of the damages is irrelevant when the suit is against the state itself or a state agency”); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F. 2d 351, 357 (CA7 1983) (“No authority supports Cannon’s argument that [the Eleventh Amendment] analysis is altered by the possibility that a damage award would be met through insurance proceeds or from federal funds”).

       Ultimately, of course, the question whether a particular state agency has the same kind of independent status as a county or is instead an arm of the State, and therefore “one of the United States” within the meaning of the Eleventh Amendment, is a question of federal law. But that federal question can be answered only after considering the provisions of state law that define the agency’s character.

       We relied in Mt. Healthy on our earlier decision that a California county is not an “arm of the State” and therefore may be considered a “citizen” of California for the purpose of determining the federal court’s diversity jurisdiction over a state-law claim. Moor v. County of Alameda, 411 U. S. 693, 717-721 (1973). In Moor we made a “detailed examination of the relevant provisions of California law” defining counties, noting that the county “is liable for all judgments against it and is authorized to levy taxes to pay such judgments,” that it is “empowered to issue general obligation bonds,” and that it has other characteristics that provide “persuasive indicia of the independent status occupied by California counties relative to the State of California.” Id., at 719-721.


author: Justice Stevens Justice Thomas,

text:
    LYNCE v. MATHIS, SUPERINTENDENT, TOMOKA CORRECTIONAL INSTITUTION, et al.
    No. 95-7452.
    Argued November 4, 1996
    Decided February 19, 1997

      Joel T. Remland argued the cause for petitioner. With him on the briefs was Carter G. Phillips.

      Parker D. Thomson, Assistant Attorney General of Florida, argued the cause for respondents. On the brief for respondent Butterworth were Mr. Butterworth, Attorney General, pro se, and Jason Vail, Assistant Attorney General. Susan A. Maher filed a brief for respondent Mathis.

        Chet Kaufman filed a brief for the Florida Public Defender Association, Inc., as amicus curiae urging reversal.
      A brief of amici curiae urging affirmance was filed for the State of Nevada et al. by Frankie Sue Del Papa, Attorney General of Nevada, and Anne B. Cathcart, Senior Deputy Attorney General, and by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, Michael J. Bowers of Georgia, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Jeffrey L. Amestoy of Vermont, and James S. Gilmore III of Virginia.

        Lisa B. Kemler and Baya Harrison III filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae. 1 The

   Justice Stevens

delivered the opinion of the Court.

In 1983 and thereafter the Florida Legislature enacted a series of statutes authorizing the department of corrections to award early release credits to prison inmates when the population of the state prison system exceeded predetermined levels. The question presented by this case is whether a 1992 statute canceling such credits for certain classes of offenders after they had been awarded — indeed, after they had resulted in the prisoners’ release from custody — violates the Ex Post Facto Clause of the Federal Constitution.

I

In 1986 petitioner pleaded nolo contendere to a charge of attempted murder and received a sentence of 22'years (8,030 days) in prison. In 1992 the Florida Department of Corrections released him from prison based on its determination that he had accumulated five different types of early release credits totaling 5,668 days. Of that total, 1,860 days were “provisional credits” awarded as a result of prison overcrowding. Shortly after petitioner’s release, the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to inmates convicted of murder or attempted murder. Petitioner was therefore rearrested and returned to custody. His new release date was set for May 19, 1998.

In 1994 petitioner filed a petition for a writ of habeas corpus alleging that the retroactive cancellation of provisional credits violated the Ex Post Facto Clause. Relying on Eleventh Circuit and Florida precedent holding that the revocation of provisional credits did not violate the Ex Post Facto Clause because their sole purpose was to alleviate prison overcrowding, the Magistrate Judge recommended dismissal of the petition. The District Court adopted that recommendation, dismissed the petition, and denied a certificate of probable cause. The Court of Appeals for the Eleventh Circuit also denied a certificate of probable cause in an unpublished order. Because the Court of Appeals for the Tenth Circuit reached a different conclusion on similar facts, Arnold v. Cody, 951 F. 2d 280 (1991), we granted certiorari to resolve the conflict. 517 U. S. 1186 (1996).

Motivated largely by the overcrowded condition of the entire Florida prison system, in 1983 the state legislature enacted the Correctional Reform Act of 1983, a comprehensive revision of the State’s sentencing laws. The Act authorized generous awards of early release credits including “basic gain-time” at the rate of 10 days for each .month, “up to 20 days of incentive gain time, which shall be credited and applied monthly,” and additional deductions of “meritorious gain-time of from 1 to 60 days.” See 1983 Fla. Laws, ch. 83-131, §8. The Act also created an emergency procedure to be followed “whenever the population of the state correctional system exceeds 98 percent of the lawful capacity of the system for males or females, or both.” §5(1). When such an emergency was declared, “the sentences of all inmates in the system who are eligible to earn gain-time shall be reduced by the credit of up to 30 days gain-time in 5-day increments as may be necessary to reduce the inmate population to 97 percent of lawful capacity.” § 5(2).

In the ensuing years, the Florida Legislature modified the overcrowding gain-time system. In 1987 the legislature raised the threshold for awarding emergency release credits from 98% to 99% of capacity. At the same time, the legislature authorized a new form of overcrowding credit, administrative gain-time, with a 98% threshold, which authorized up to a maximum of 60 days additional gain-time to inmates already earning incentive gain-time. Inmates serving sentences for certain offenses were ineligible for the awards. In 1988 the legislature repealed the administrative gain-time provision, and replaced it with a provisional credits system. The language of the provisional credits statute was virtually identical to that of the administrative gain-time statute — it also authorized up to 60 days of gain-time but was triggered when the inmate population reached 97.5% of capacity. In addition, the legislature expanded the list of offenders who were ineligible for the awards.

Having received overcrowding gain-time under the administrative gain-time and provisional credits statutes, as well as basic and incentive gain-time, petitioner was released from prison in 1992. That same year, the legislature canceled provisional overcrowding credits for certain classes of inmates, including those convicted of attempted murder. As a result of that action, credits for 2,789 inmates who were still in custody were canceled, and rearrest warrants were issued for 164 offenders who had been released. Petitioner was in the latter class.

Respondents contend that the cancellation of petitioner’s provisional credits did not violate the Ex Post Facto Clause for two reasons: (1) Because the credits had been issued as part of administrative procedures designed to alleviate overcrowding, they were not an integral part of petitioner’s punishment; and (2) in petitioner’s case, the specific overcrowding credits had been awarded pursuant to statutes enacted after the date of his offense rather than pursuant to the 1983 statute. We consider the arguments separately.

I — I h-< h-H

The presumption against the retroactive application of new laws is an essential thread in the mantle of protection that the law affords the individual citizen. That presumption “is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994). This doctrine finds expression in several provisions of our Constitution. The specific prohibition on ex post facto laws is only one aspect of the broader constitutional protection against arbitrary changes in the law. In both the civil and the criminal context, the Constitution places limits on the sovereign’s ability to use its lawmaking power to modify bargains it has made with its subjects. The basic principle is one that protects not only the rich and the powerful, United States v. Winstar Corp., 518 U. S. 839 (1996), but also the indigent defendant engaged in negotiations that may lead to an acknowledgment of guilt and a suitable punishment.

Article I, § 10, of the Federal Constitution provides that "[n]o State shall... pass any ... ex post facto Law.” In his opinion for the Court in Beazell v. Ohio, 269 U. S. 167 (1925), Justice Stone explained:

“The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.” Id., at 170.

The bulk of our ex post facto jurisprudence has involved claims that a law has inflicted “a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). We have explained that such laws implicate the central concerns of the Ex Post Facto Clause: “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U. S. 24, 30 (1981).

To fall within the ex post facto prohibition, a law must be retrospective — that is, “it must apply to events occurring before its enactment” — and it “must disadvantage the offender affected by it,” id., at 29, by altering the definition of criminal conduct or increasing the punishment for the crime, see Collins v. Youngblood, 497 U. S. 37, 50 (1990). In this case the operation of the 1992 statute to effect the cancellation of overcrowding credits and the consequent reincar-eeration of petitioner was clearly retrospective. The narrow issue that we must decide is thus whether those consequences disadvantaged petitioner by increasing his punishment.

In arguing that the cancellation of overcrowding credits inflicts greater punishment, petitioner relies primarily on our decision in Weaver v. Graham, in which we considered whether retroactively decreasing the amount of gain-time awarded for an inmate’s good behavior violated the Ex Post Facto Clause. In that case the petitioner had pleaded guilty to second-degree murder and had been sentenced to prison for 15 years. At the time of Weaver’s plea, Florida law provided credits contingent on the good conduct of the prisoner of 5 days per month for the first two years of his sentence, 10 days per month for the third and fourth years, and 15 days per month thereafter. The law therefore provided him with an opportunity to be released after serving less than nine years of his sentence. In 1978 the Florida Legislature enacted a new formula for computing gain-time; instead of 5, 10, and 15 days per month, it authorized only 3, 6, and 9 days. The new statute did not withdraw any credits already awarded to Weaver, but by curtailing the availability of future credits it effectively postponed the date when he would become eligible for early release. Because the statute made the punishment for crimes committed before its enactment “more onerous,” we unanimously concluded that it ran “afoul of the prohibition against ex post facto laws.” 450 U. S., at 36.

According to petitioner, although this case involves overcrowding credits, it is essentially like Weaver because the issuance of these credits was dependent on an inmate’s good conduct. Respondents, on the other hand, submit that Weaver is not controlling because it was the overcrowded condition of the prison system, rather than the character of the prisoner’s conduct, that gave rise to the award. In our view, both of these submissions place undue emphasis on the legislature’s subjective intent in granting the credits rather than on the consequences of their revocation.

In arriving at our holding in Weaver, we relied not on the subjective motivation of the legislature in enacting the gain-time credits, but rather on whether objectively the new statute “lengthened] the period that someone in petitioner’s position must spend in prison.” Id., at 33. Similarly, in this case, the fact that the generous gain-time provisions in Florida’s 1983 statute were motivated more by the interest in avoiding overcrowding than by a desire to reward good behavior is not relevant to the essential inquiry demanded by the Ex Post Facto Clause: whether the cancellation of 1,860 days of accumulated provisional credits had the effect of lengthening petitioner’s period of incarceration.

In our post-Weaver cases, we have also considered whether the legislature’s action lengthened the sentence without examining the purposes behind the original sentencing scheme. In Miller v. Florida, 482 U. S. 423 (1987), we unanimously concluded that a revision in Florida’s sentencing guidelines that went into effect between the date of petitioner’s offense and the date of his conviction violated the Ex Post Facto Clause. Our determination that the new guideline was “ ‘more onerous than the prior law,’ ” id., at 431 (quoting Dobbert v. Florida, 432 U. S. 282, 294 (1977)), rested entirely on an objective appraisal of the impact of the ehange on the length of the offender’s presumptive sentence. 482 U. S., at 431 (“Looking only at the change in primary offense points, the revised guidelines law clearly disadvantages petitioner and similarly situated defendants”).

In California Dept. of Corrections v. Morales, 514 U. S. 499 (1995), we also relied entirely on objective considerations to support our conclusion that an amendment to California’s parole procedures that decreased the frequency of parole hearings for certain offenders had not made any “change in the ‘quantum of punishment,’ ” id., at 508. The amendment at issue in Morales allowed the parole board, after holding an initial parole hearing, to defer for up to three years subsequent parole suitability hearings for prisoners convicted of multiple murders if the board found that it was unreasonable to expect that parole would be granted at a hearing during the subsequent years. We stated that the relevant inquiry is whether the “change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id., at 507, n. 3. After making that inquiry, we found that “there is no reason to conclude that the amendment will have any effect on any prisoner’s actual term of confinement.” Id., at 512. Our holding rested squarely on the conclusion that “a prisoner’s ultimate date of release would be entirely unaffected by the change in the timing of suitability hearings.” Id., at 513. Although we held that “speculative and attenuated possibilities]” of increasing the measure of punishment do not implicate the Ex Post Facto Clause, id., at 509, the bulk of our analysis focused on the effect of the law on the inmate’s sentence.

We did not imply in Morales, as respondents contend, that the constitutionality of retroactive changes in the quantum of punishment depended on the purpose behind the parole sentencing system. The only mention of legislative purpose in Morales was in the following passage:

“In contrast to the laws at issue in Lindsey [v. Washington, 301 U. S. 397 (1937)], Weaver, and Miller (which had the purpose and effect of enhancing the range of available prison terms, see Miller, supra, at 433-434), the evident focus of the California amendment was merely ‘“‘to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings”” for prisoners who have no reasonable chance of being released. In re Jackson, 39 Cal. 3d 464, 473, 703 P. 2d 100, 106 (1985) (quoting legislative history).” Id., at 507.

Thus, we concluded, the change at issue had neither the purpose nor the effect of increasing the quantum of punishment. Whether such a purpose alone would be a sufficient basis for concluding that a law violated the Ex Post Facto Clause when it actually had no such effect is a question .the Court has never addressed. Moreover, in Morales our statements regarding purpose did not refer to the purpose behind the creation of the original sentencing scheme; they referred instead to the question whether, in changing that sentencing scheme, the legislature intended to lengthen the inmate’s sentence. To the extent that any purpose might be relevant in this case, it would only be the purpose behind the legislature’s 1992 enactment of the offense-based exclusion. Here, unlike in Morales, there is no evidence that the legislature’s change in the sentencing scheme was merely to save time or money. Rather, it is quite obvious that the retrospective change was intended to prevent the early release of prisoners convicted of murder-related offenses who had accumulated overcrowding credits.

Respondents also argue that the retroactive cancellation of overcrowding credits is permissible because overcrowding gain-time — unlike the incentive gain-time at issue in Weaver which is used to encourage good prison behavior and prisoner rehabilitation — “b[ears] no relationship to the original penalty assigned the crime or the actual penalty calculated under the sentencing guidelines.” Brief for Respondent Mathis 20. To the extent that respondents’ argument rests on the notion that overcrowding gain-time is not “in some technical sense part of the sentence,” Weaver, 450 U. S., at 32, this argument is foreclosed by our precedents. As we recognized in Weaver, retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are “one determinant of petitioner’s prison term ... and ... [the petitioner’s] effective sentence is altered once this determinant is changed.” Ibid. We explained in Weaver that the removal of such provisions can constitute an increase in punishment, because a “prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed.” Ibid.

Respondents argue that this reasoning does not apply to overcrowding credits because, when petitioner pleaded nolo contendere, he could not reasonably have expected to receive any such credits.. The State, after all, could have alleviated the overcrowding problem in various ways: It could have built more prisons; it could have paroled a large category of nonviolent offenders; or it might have discontinued prosecution of some classes of victimless crimes. Respondents thus argue that the 1992 statute does not violate the Ex Post Facto Clause because, like the California amendment at issue in Morales, it “create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes.” 514 U. S., at 509. Given the fact that this petitioner was actually awarded 1,860 days of provisional credits and the fact that those credits were retroactively canceled as a result of the 1992 amendment, we find this argument singularly unpersuasive. In this case, unlike in Morales, the actual course of events makes it unnecessary to speculate about what might have happened. The 1992 statute has unquestionably disadvantaged petitioner because it resulted in his rearrest and prolonged his imprisonment. Unlike the California amendment at issue in Morales, the 1992 Florida statute did more than simply remove a mechanism that created an opportunity for early release for a class of prisoners whose release was unlikely; rather, it made ineligible for early release a class of prisoners who were previously eligible — including some, like petitioner, who had actually been released.

> HH

Although it does not appear that respondents advanced this argument in the papers filed in the District Court, the Court of Appeals, or in their brief in opposition to the petition for certiorari in this Court, they now argue that petitioner is not entitled to relief because his overcrowding credits were awarded pursuant to statutes enacted after the date of his offense rather than pursuant to the 1983 statute. We disagree.

The overcrowding statute in effect at the time of petitioner’s crime was modified in subsequent years, but its basic elements remained the same: The statute provided for reductions in a prisoner’s sentence when the population of the prison system exceeded a certain percentage of lawful capacity. At the time of petitioner’s sentence in 1986, the emergency gain-time statute was in effect. Under that statute, when the prison population reached 98% of lawful capacity, the secretary of the department of corrections was required to advise the Governor and, after receiving the Governor’s verification of the capacity certification, to declare a state of emergency whereupon the sentences of all eligible inmates “shall be reduced by the credit of up to 30 days gain-time, in 5-day increments, as may be necessary to reduce the inmate population to 97 percent of lawful capacity.” Fla. Stat. §944.598(2) (1983).

The later statutes slightly modified the procedures outlined in the 1983 statute. The administrative gain-time statute enacted in 1987 (after petitioner’s plea of nolo con-tendere) provided that the secretary, after certification to the Governor, “may grant up to a maximum of 60 days administrative gain-time.” Fla. Stat § 944.276(1). Unlike the emergency gain-time statute, the administrative gain-time statute made the issuance of gain-time discretionary, and it contained certain offense-based exclusions. The provisional credits provision was enacted to replace administrative gain-time and is essentially the same, except that it provides for the issuance of gain-time when the prison reaches 97.5% of lawful capacity, rather than 98%. Fla. Stat. §944.277 (1988). See Griffin v. Singletary, 638 So. 2d 500 (Fla. 1994).

The changes in the series of statutes authorizing the award of overcrowding gain-time do not affect petitioner’s core ex post facto claim. Petitioner could have accumulated gain-time under the emergency gain-time provision in much the same manner as he did under the provisional credits statute. We recognize, however, that although the differences in the statutes did not affect petitioner’s central entitlement to gain-time, they may have affected the precise amount of gain-time he received. Between 1988 and 1992, the provisional credits were authorized when the prison reached 97.5% capacity rather than 98% capacity as under the emergency gain-time statute. If the prison population did not exceed 98% of capacity between 1988 and 1992, and if petitioner received provisional credits during those years, there is force to the argument that the cancellation of that portion of the 1,860-day total did not violate the Ex Post Facto Clause. Because this point was not adequately developed earlier in the proceeding, and because it may not in any event affect petitioner’s entitlement to release, we leave it open for further consideration on remand.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

with whom Justice Scalia joins,

concurring in part and concurring in the judgment.

I understand the Court’s opinion to hold that retroactively canceling petitioner’s so-called “provisional credits” after he has used them to gain his freedom violates the Ex Post Facto Clause. This result naturally follows from our consistent view that the Clause is intended to prohibit laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins v. Youngblood, 497 U. S. 37, 43 (1990).

Whether a particular law retroactively increases a criminal punishment is often a close question. In California Dept. of Corrections v. Morales, 514 U. S. 499 (1995), for example, respondent challenged a retroactive change to the frequency of parole hearings. Given that the retroactive change “create[d] only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes,” we found no ex post facto violation. Id., at 514.

Unlike in Morales, the increase in petitioner’s punishment here was neither “speculative” nor “attenuated.” Petitioner pleaded nolo contendere to a charge of attempted murder and was duly sentenced. During the period of his confinement, petitioner accumulated release credits under a state statute adopted in response to prison overcrowding. Those credits enabled petitioner to be freed from prison before his sentence (as originally imposed) had run. Shortly before petitioner secured his release, however, the Florida Legislature enacted a statute preventing certain categories of offenders from taking advantage of the provisional credits. Although petitioner’s offense placed him among the offenders denied the opportunity to acquire those particular credits, the statute was not applied retroactively. Petitioner was thus released. The state attorney general subsequently issued an opinion giving the statute retroactive effect. The State thereafter rearrested petitioner and returned him to custody.

Under these narrow circumstances, I agree with the Court that the State’s retroactive nullification of petitioner’s previously accrued, and then used, release credits violates the Constitution’s ban on ex post facto lawmaking. I do not, however, join the majority’s discussion of Weaver v. Graham, 450 U. S. 24 (1981), which I find unnecessary to the resolution of this case. In Weaver, we considered whether a statute that merely altered the availability of “good conduct” credits ran afoul of the Ex Post Facto Clause. Id., at 25. The present case involves not merely an effect on the availability of future release credits, but the retroactive elimination of credits already earned and used. Accordingly, I concur in part and concur in the judgment.

       The total included: <1) a 170-day credit for time spent in jail prior to his conviction; (2) “basic gain-time” of 2,640 days; (3) “additional [incentive] gain-time” of 958 days; (4) “administrative gain-time” of 335 days; and (5) “provisional credits” of 1,860 days. Disciplinary action resulted in a forfeiture of 295 days.

         Hock v. Singletary, 41 F. 3d 1470 (1995).

        Dugger v. Rodrick, 584 So. 2d 2 (Fla. 1991), cert. denied sum nom. Rodrick v. Singletary, 502 U. S. 1037 (1992).

       Petitioner did not advance his ex post facto claim in the District Court respondents challenged his failure to exhaust his state remedies, but do not appear to have raised the exhaustion issue in the Court of Appeals; nor have they raised it in this Court. Presumably they are satisfied, as we are, that exhaustion would have been futile. The Florida Supreme Court, in Dugger v. Rodrick, 584 So. 2d 2 (1991), held that retrospective application of the provisional credits statute’s offense-based exclusion did not violate the Ex Post Facto Clause. The court reasoned that overcrowding credits, unlike basic gain-time or incentive gain-time, were merely “procedural” and did not create any substantive rights. Relying on Dugger, the Florida Supreme Court held in Griffin v. Singletary, 638 So. 2d 500 (1994), that cancellation of provisional credits actually awarded to a prisoner did not violate the Ex Post Facto Clause. Respondents have not suggested any reason why the Florida courts would have decided petitioner’s case differently.

       In 1980 the Florida Department of Corrections consented to the entry of a decree establishing a limit on the prison population that could not be exceeded without court approval. See Costello v. Wainwright, 489 F. Supp. 1100 (MD Fla. 1980). In 1982 a special session of the legislature created a Corrections Overcrowding Task Force, which drafted the 1983 legislation.

       1983 Fla. Laws, ch. 83-131.

       Section 8 amended §944.275 of the Florida Statutes.

       Section 5, in pertinent part, provides:
      “(1) The Department of Corrections shall advise the Governor of the existence of a state of emergency in the state correctional system whenever the population of the state correctional system exceeds 98 percent of the lawful capacity of the system for males or females, or both. In conveying this information, the secretary of the department shall certify the rated design capacity, maximum capacity, lawful capacity, system maximum capacity, and current population of the state correctional system. When the Governor verifies such certification by letter, the secretary shall declare a state of emergency.
      “(2) Following the declaration of a state of emergency, the sentences of all inmates in the system who are eligible to earn gain-time shall be reduced by the credit of up to 30 days gain-time in 5-day increments as may be necessary to reduce the inmate population to 97 percent of lawful capacity.” 1983 Fla. Laws, ch. 83-131, §5.

       1988 Fla. Laws, eh. 88-122, § 5. The provisional credits statute was repealed in 1993. 1993 Fla. Laws, ch. 93-406, §§32, 35. The only overcrowding credit system in place today in Florida is the “control release” provision, first enacted in 1989, which authorizes release from incarceration rather than gain-time to control prison population. See Fla. Stat. §947.146 (Supp. 1992).

       See Fla. Op. Atty. Gen. 92-96 (1992), reprinted in Lodging, p. 53; Griffin v. Singletary, 638 So. 2d, at 501. In 1989 the Florida Legislature amended the provisional credits statute to render those convicted of certain murder offenses, including attempted murder, ineligible for provisional credits. Fla. Stat. § 944.277 (1989). The Florida Department of Corrections interpreted the 1989 amendments, and subsequent amendments enacted in 1990 and 1991 which contained the same exclusion, to apply prospectively. The 1992 amendment at issue in this case was originally interpreted by the department of corrections to apply only prospectively, but the subsequent 1992 opinion by the attorney general concluded that the statute applied retroactively.

       Department of Corrections Letter of July 9, 1996, App. to Brief for Florida Public Defender Association, Inc., as Amicus Curiae. The petitioner’s administrative gain-time credits were also canceled, but he does not challenge that action.

       «The ex posi ]?acto Clause flatly prohibits retroactive application of penal legislation. Article I, §10, el. 1, prohibits States from passing another type of retroactive legislation, laws ‘impairing the Obligation of Contracts.’ The Fifth Amendment’s Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a ‘public use’ and upon payment of ‘just compensation.’ The prohibitions on ‘Bills of Attainder’ in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. See, e. g., United States v. Brown, 381 U. S. 437, 456-462 (1965). The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation ....” Landgraf v. USI Film Products, 511 U. S., at 266 (footnote omitted).

       This case falls in the third of the four categories of ex post facto laws described by Justice Chase: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Calder v. Bull, 3 Dall., at 390 (emphasis deleted).

       Later in the opinion we restated the test in similar language: “In evaluating the constitutionality of the 1981 amendment, we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” California Dept. of Corrections v. Morales, 514 U. S., at 509.

       Indeed, the attorney general issued the 1992 opinion interpreting the statute to apply retroactively in response to concerns about the release of a notorious sex offender and murderer. See Fla. Op. Atty. Gen. 92-96, at 283, reprinted in Lodging, at 53.

       The support for our conclusion in Morales that the Act was merely speculative has no counterpart in this case. In Morales, we first relied on the fact that the amendment affected a class of prisoners — multiple murderers — who had little chance of being released on parole. Second, we found that the amendment did not alter the date of the prisoner’s initial parole suitability hearing, and therefore only affected those initially deemed unsuitable for parole. Lastly, we recognized that the parole board “retain[ed] the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner.” 514 U. S., at 511. Simply put, we rejected the inmate’s claim in Morales, because it could not be said with any certainty that the amended statutory scheme was more “onerous” than at the time of the crime. See id., at 509-510 (quoting Dobbert v. Florida, 432 U. S. 282, 294 (1977), for “refusing to accept ‘speculation’ that the effective punishment under a new statutory scheme would be ‘more onerous’ than under the old one”).

       We note that respondents do not argue, as the Magistrate Judge found, that the revocation of overcrowding credits is constitutional because such an act is merely “procedural.” Thére is no merit to this argument in any case. We explained in Dobbert v. Florida, 432 U. S. 282 (1977), that a procedural statute is one that “simply alter[s] the methods employed in determining” whether the punishment is “to be imposed” rather than “ehang[ing]. . . the quantum of punishment attached to the crime.” Id.,. at 293-294. Because the 1992 law did not change the method of determining the sentence, but rather lengthened the sentences of certain prisoners by making them ineligible for early release, it was not merely procedural.

       Respondent Attorney General Butterworth suggests that under the emergency gain-time statute, the maximum award petitioner could have realized was 30 days of emergency gain-time. Therefore, according to the attorney general, it is unlikely that the gain-time statute would have had any effect on petitioner’s sentence. We do not agree that the statute lends itself to such a reading. The statute required the department of corrections to advise the Governor “whenever the population of the state correctional system exceeds 98 percent of lawful capacity.” Fla. Stat. §944.598(1) (1983) (emphasis added). The duty to grant up to 30 days gain-time in 5-day increments was continuing until the inmate population reached 97% of lawful capacity. If the inmate population were to rise again to 98%, the Secretary was required to issue additional gain-time.
      Moreover, the attorney general’s reading of the emergency gain-time statute would also limit the award of gain-time under the administrative gain-time and provisional credits statute. These statutes contain wording similar to the emergency gain-time statute, see Fla. Stat. § 944.276(1) (1987); Fla. Stat. §944.277(1) (1989), yet the State has not interpreted the statutes to limit the award of gain-time to a total of 60 days.