author: Justice Thomas Justice Scalia,

text:
    UNITED STATES v. RODRIGUEZ-MORENO
    No. 97-1139.
    Argued December 7, 1998
    Decided March 30, 1999

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ, joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 282.

      Paul R. Q. Wolf son argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Daniel S. Goodman.

      John P. McDonald, by 806, argued the cause for respondent. With him on the brief were Jeffrey T. Green and Robert C. Nissen.

        Steven Wisotsky and Lisa, Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

This ease presents the question whether venue in a prosecution for using or carrying a firearm “during and in relation to any crime of violence,” in violation of 18 U. S. C. § 924(e)(1), is proper in any district where the crime of violence vías committed, even if the firearm was used or carried only in a single district.

I

During a drug transaction that took place in Houston, Texas, a New York drug dealer stole 80 kilograms of a Texas drug distributor’s cocaine. The distributor hired respondent, Jacinto Rodríguez-Moreno, and others to find the dealer and to hold captive the middleman in the transaction, Ephrain Avendano, during the search. In pursuit of the dealer, the distributor and his henchmen drove from Texas to New Jersey with Avendano in tow. The group used Avendano’s New Jersey apartment as a base for their operations for a few days. They soon moved to a house in New York and then to a house in Maryland, taking Avendano with them.

Shortly after respondent and the others arrived at the Maryland house, the owner of the home passed around a .357 magnum revolver and respondent took possession of the pistol. As it became clear that efforts to find the New York drug dealer would not bear fruit, respondent told his employer that he thought they should kill the middleman and end their search for the dealer. He put the gun to the back of Avendano’s neck but, at the urging of his cohorts, did not shoot. Avendano eventually escaped through the back door and ran to a neighboring house. The neighbors called the Maryland police, who arrested respondent along with the rest of the kidnapers. The police also seized the .357 magnum, on which they later found respondent’s fingerprint.

his codefendants were tried jointly in the United States District Court for the District of New Jersey. Respondent was charged with, inter alia, conspiring to kidnap Avendano, kidnaping Avendano, and using and carrying a firearm in relation to the kidnaping of Avendano, in violation of 18 U. S. C. § 924(c)(1). At the conclusion of the Government’s case, respondent moved to dismiss the § 924(c)(1) count for lack of venue. He argued that venue was proper only in Maryland, the only place where the Government had proved he had actually used a gun. The District Court denied the motion, App. 54, and the jury found respondent guilty on the kidnaping counts and on the § 924(c)(1) charge as well. He was sentenced to 87 months’ imprisonment on the kidnaping charges, and was given a mandatory consecutive term of 60 months’ imprisonment for committing the § 924(c)(1) offense.

On a 2-to-l vote, the Court of Appeals for the Third Circuit reversed respondent’s § 924(c)(1) conviction. United States v. Palma-Ruedas, 121 F. 3d 841 (1997). A majority of the Third Circuit panel applied what it called the “verb test” to § 924(c)(1), and determined that a violation of the statute is committed only in the district where a defendant “uses” or “carries” a firearm. Id., at 849. Accordingly, it concluded that venue for the § 924(c)(1) count was improper in New Jersey even though venue was proper there for the kidnap-ing of Avendano. The dissenting judge thought that the majority’s test relied too much “on grammatical arcana,” id., at 865, and argued that the proper approach was to “look at the substance of the statutes in question,” ibid. In his view, the crime of violence is an essential element of the course of conduct that Congress sought to criminalize in enacting § 924(e)(1), and therefore, “venue for a prosecution under [that] statute lies in any district in which the defendant committed the underlying crime of violence.” Id., at 863. The Government petitioned for review on the ground that the Third Circuit’s holding was in conflict with a decision of the Court of Appeals for the Fifth Circuit, United States v. Pomranz, 43 F. 3d 156 (1995). We granted certiorari, 524 U. S. 915 (1998), and now reverse.

b-i 5 — 1

Article III of the Constitution requires that “[t]he Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” Art. Ill, § 2, cl. 3. Its command is reinforced by the Sixth Amendment’s requirement that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” and is echoed by Rule 18 of the Federal Rules of Criminal Procedure (“prosecution shall be had in a district in which the offense was committed”).

As we confirmed just last Term, the ‘“locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it.’ ” United States v. Cabrales, 524 U. S. 1, 6-7 (1998) (quoting United States v. Anderson, 328 U. S. 699, 703 (1946)). In performing this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts. See Cabrales, supra, at 6-7; Travis v. United States, 364 U. S. 631, 635-637 (1961); United States v. Cores, 356 U. S. 405, 408-409 (1958); Anderson, supra, at 703-706.

committed the offense and was tried, 18 U. S. C. § 924(e)(1) provided:

“Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years ... .”

The Third Circuit, as explained above, looked to the verbs of the statute to determine the nature of the substantive offense. But we have never before held, and decline to do so here, that verbs are the sole consideration in identifying the conduct that constitutes an offense. While the “verb test” certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.

In our view, the Third Circuit overlooked an essential conduct element of the § 924(c)(1) offense. Section 924(c)(1) prohibits using or carrying a firearm “during and in relation to any crime of violence ... for which [a defendant] may be prosecuted in a court of the United States.” That the crime of violence element of the statute is embedded in a prepositional phrase and not expressed in verbs does not dissuade us from concluding that a defendant’s violent acts are essential conduct elements. To prove the charged § 924(c)(1) violation in this case, the Government was required to show that respondent used a firearm, that he committed all the acts necessary to be subject to punishment for kidnaping (a crime of violence) in a court of the United States, and that he used the gun “during and in relation to” the kidnaping of Avendano. In sum, we interpret § 924(c)(1) to contain two distinct conduct elements — as is relevant to this case, the “using and carrying” of a gun and the commission of a kidnaping.

Respondent, however, argues that for venue purposes “the New Jersey kidnapping is completely irrelevant to the firearm crime, because respondent did not use or carry a gun during the New Jersey crime.” Brief for Respondent 12. In the words of one amicus, § 924(c)(1) is a “point-in-time” offense that only is committed in the place where the kidnap-ing and the use of a gun coincide. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 11. We disagree. Several Circuits have determined that kid-naping, as defined by 18 U. S. C. § 1201 (1994 ed. and Supp. Ill), is a unitary crime, see United States v. Seals, 130 F. 3d 451, 461-462 (CADC 1997); United States v. Denny-Shaffer, 2 F. 3d 999, 1018-1019 (CA10 1993); United States v. Godinez, 998 F. 2d 471, 473 (CA7 1993); United States v. Garcia, 854 F. 2d 340, 343-344 (CA9 1988), and we agree with their conclusion. A kidnaping, once begun, does not end until the victim is free. It does not make sense, then, to speak of it in discrete geographic fragments. Section 924(e)(1) criminalized a defendant’s use of a firearm “during and in relation to” a crime of violence; in doing so, Congress proscribed both the use of the firearm and the commission of acts that constitute a violent crime. It does not matter that respondent used the .357 magnum revolver, as the Government concedes, only in Maryland because he did so “during and in relation to” a kidnaping that was begun in Texas and continued in New York, New Jersey, and Maryland. In our view, § 924(c)(1) does not define a “point-in-time” offense when a firearm is used during and in relation to a continuing crime of violence.

As we said in United States v. Lombardo, 241 U. S. 73 (1916), “where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done.” Id., at 77; cf. Hyde v. United States, 225 U. S. 347, 356-367 (1912) (venue proper against defendant in district where co-conspirator carried out overt acts even though there was no evidence that the defendant had ever entered that district or that the conspiracy was formed there). The kidnaping, to which the § 924(c)(1) offense is attached, was committed in all of the places that any part of it took place, and venue for the kid-naping charge against respondent was appropriate in any of them. (Congress has provided that continuing offenses can be tried “in any district in which such offense was begun, continued, or completed,” 18 U. S. C. § 3287(a).) Where venue is appropriate for the underlying crime of violence, so too it is for the § 924(e)(1) offense. As the kidnaping was property tried in New Jersey, the § 924(c)(1) offense could be tried there as well.

* * *

We hold that venue for this prosecution was proper in the district where it was brought. The judgment of the Court of Appeals is therefore reversed.

It is so ordered.

Justice Scalia,

with whom Justice Stevens joins, dissenting.

I agree with the Court that in deciding where a crime was committed for purposes of the venue provision of Article III, §2, of the Constitution, and the vicinage provision of the Sixth Amendment, we must look at “the nature of the crime alleged and the location of the act or acts constituting it.” Ante, at 279 (quoting United States v. Cabrales, 524 U. S. 1, 7 (1998), in turn quoting United States v. Anderson, 328 U. S. 699, 703 (1946)) (internal quotation marks omitted). I disagree with the Court, however, that the crime defined in 18 U. S. C. § 924(c)(1) is “committed” either where the defendant commits the predicate offense or where he uses or carries the gun. It seems to me unmistakably clear from the text of the law that this crime can be committed only where the defendant both engages in the acts making up the predicate offense and uses or carries the gun.

At the time of respondent’s alleged offense, § 924(c)(1) read:

“Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may he prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.”

This prohibits the act of using or carrying a firearm “during” (and in relation to) a predicate offense. The provisions of the United States Code defining the particular predicate offenses already punish all of the defendant’s alleged criminal conduct except his use or carriage of a gun; § 924(c)(1) itself criminalizes and punishes such use or carriage “during” the predicate crime, because that makes the crime more dangerous. Cf. Muscarello v. United States, 524 U. S. 125, 132 (1998). This is a simple concept, and it is embodied in a straightforward text. To answer the question before us we need only ask where the defendant’s alleged act of using a firearm during (and in relation to) a kidnaping occurred. Since it occurred only in Maryland, venue will lie only there.

on United States v. Lombardo, 241 U. S. 73, 77 (1916), for the proposition that “‘where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done.’ ” Ante, at 281. The fallacy in this reliance is that the crime before us does not consist of “distinct” parts that can occur in different localities. Its two parts are bound inseparably together by the word “during.” Where the gun is being used, the predicate act must be occurring as well, and vice versa. The Court quite simply reads this requirement out of the statute — as though there were no difference between a statute making it a crime to steal a cookie and eat it (which could be prosecuted either in New Jersey, where the cookie was stolen, or in Maryland, where it was eaten) and a statute making it a crime to eat a cookie while robbing a bakery (which could be prosecuted only where the ingestive theft occurred).

The Court believes its holding is nature of the kidnaping predicate offense, which invokes the statute providing that “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” 18 U. S. C. § 3237(a). To disallow the New Jersey prosecution here, the Court suggests, is to convert § 924(c)(1) from a continuing offense to a “point-in-time” offense. Ante, at 281. That is simply not so. I in no way contend that the kidnaping, or, for that matter, the use of the gun, can occur only at one point in time. Each can extend over a protracted period, and in many places. But § 924(e)(1) is violated only so long as, and where, both continuing acts are being committed simultaneously. That is what the word “during” means. Thus, if the defendant here had used or carried the gun throughout the kidnaping, in Texas, New Jersey, New York, and Maryland, he could have been prosecuted in any of those States. As it was, however, he used a gun during a kidnaping only in Maryland.

Finally, the Government contends “use or carry” element of § 924(c)(1) is “difficult to square” with the cases holding that there can be only one § 924(c)(1) violation for each predicate offense. Reply Brief for United States 9 (citing United States v. Palma-Ruedas, 121 F. 3d 841, 862-868 (CA3 1997) (Alito, J., concurring in part and dissenting in part) (case below)). See, e. g., United States v. Anderson, 59 F. 3d 1323, 1328-1334 (CADC) (en banc), cert. denied, 516 U. S. 999 (1995); United States v. Taylor, 13 F. 3d 986, 992-994 (CA6 1994); United States v. Lindsay, 985 F. 2d 666, 672-676 (CA2), cert. denied, 510 U. S. 832 (1993). This is an odd argument for the Government to make, since it has disagreed with those cases, see, e.g., Anderson, supra, at 1328; Lindsay, supra, at 674, and has succeeded in persuading two Circuits to the contrary, see United States v. Camps, 32 F. 3d 102, 106-109 (CA4 1994), cert. denied, 513 U. S. 1158 (1995); United States v. Lucas, 932 F. 2d 1210, 1222-1223 (CA8), cert. denied sub nom. Shakur, aka Tyler v. United States, 502 U. S. 869 (1991). But this dispute has nothing to do with the point before us here. I do not contend that using the firearm is “the entire essence of the offense.” Reply Brief for United States 9. The predicate offense is assuredly an element of the crime — and if, for whatever reason, that element has the effect of limiting prosecution to one violation per predicate offense, it ean do so just as effectively even if the “during” requirement is observed rather than ignored.

The short of the matter is that this defendant, who has a constitutional right to be tried in the State and district where his alleged crime was “committed,” U. S. Const., Art. Ill, §2, el. 3; Arndt. 6, has been prosecuted for using a gun during a kidnaping in a State and district where all agree he did not use a gun during a kidnaping. If to state this case is not to decide it, the law has departed further from the meaning of language than is appropriate for a government that is supposed to rule (and to be restrained) through the written word.

       When we first announced this test in United States v. Anderson, 328 U. S., at 703, we were comparing § 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, in which Congress did “not indicate where [it] considered the place of committing the crime to be,” 328 U. S., at 703, with statutes where Congress was explicit with respect to venue. Title 18 U. S. C. § 924(c)(1), like the Selective Training and Service Act, does not contain an express venue provision.

      The Government argues that venue also may permissibly be based upon the effects of a defendant’s conduct in a district other than the one in which the defendant performs the acts constituting the offense. Brief for United States 16-17. Because this ease only concerns the locus de-licti, we express no opinion as to whether the Government’s assertion is correct.

       The statute recently has been amended, see Pub. L. 105-386, 112 Stat. 3469, but it is not argued that the amendment is in any way relevant to our analysis in this case.

       By way of comparison, last Term in United States v. Cabrales, 524 U. S. 1 (1998), we considered whether venue for money laundering, in violation of 18 U. S. C. §§ 1956(a)(1)(B)(ii) and 1957, was proper in Missouri, where the laundered proceeds were unlawfully generated, or rather, only in Florida, where the prohibited laundering transactions occurred. As we interpreted the laundering statutes at issue, they did not proscribe “the anterior criminal conduct that yielded the funds allegedly laundered.” Cabrales, 524 U. S., at 7. The existence of criminally generated proceeds was a circumstance element of the offense but the proscribed conduct— defendant’s money laundering activity — occurred “‘after the fact’ of an offense begun and completed by others.” Ibid. Here, by contrast, given the "during and in relation to” language, the underlying crime of violence is a critical part of the § 924(c)(1) offense.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Stevens,

license: Public Domain

text:
    CONN et al. v. GABBERT
    No. 97-1802.
    Argued February 23, 1999
    Decided April 5, 1999

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scaua, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 293.

      Kevin C. Brazile argued the cause for petitioners. With him on the briefs were Lloyd W. Pellman, Donovan Main, and Louis V. Aguilar.

      Michael J. Lightfoot argued the cause for respondent. With him on the brief were Stephen B. Sadowsky and Melissa N. Widdifield.

        Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.
      A brief of amici curiae urging affirmance was filed for the National Association of Criminal Defense Lawyers et al. by John D. Cline and Barbara E. Bergman.

   Chief Justice Rehnquist

delivered the opinion of the Court.

We granted certiorari in this case, 525 U. S. 809 (1998), to decide whether a prosecutor violates an attorney’s Fourteenth Amendment right to practice his profession when the prosecutor causes the attorney to be searched at the same time his client is testifying before a grand jury. We eon-elude that such conduct by a prosecutor does not violate an attorney’s Fourteenth Amendment right to practice his profession.

This case arises out of the the “Menendez Brothers,” Lyle and Erik Menendez, for the murder of their parents. Petitioners David Corn and Carol Najera are Los Angeles County Deputy District Attorneys, and respondent Paul Gabbert is a criminal defense attorney. In early 1994, after the first Menendez trial ended in a hung jury, the Los Angeles County District Attorney’s Office assigned Conn and Najera to prosecute the case on retrial. Conn and Najera learned that Lyle Menendez had written a letter to Traci Baker, his former girlfriend, in which he may have instructed her to testify falsely at trial. Gabbert represented Baker, who had testified as a defense witness in the first trial. Conn obtained and served Baker with a subpoena directing her to testify before the Los Angeles County grand jury and also directing her to produce at that time any correspondence that she had received from Lyle Menendez, After Gabbert unsuccessfully sought to quash the portion of the subpoena directing Baker to produce the Menendez correspondence, Conn and Najera obtained a warrant to search Baker’s apartment for any such correspondence. When police tried to execute the warrant, Baker told the police that she had given all her letters from Menendez to Gabbert.

Three days later, on March 21, 1994, Baker appeared as directed before the grand jury, accompanied by Gabbert. Believing that Gabbert might have the letter on his person, Conn directed a police detective to secure a warrant to search Gabbert. California law provides that a warrant to search an attorney must be executed by a court-appointed special master. When the Special Master arrived, Gabbert requested that the search take place in a private room. He did not request that his client’s grand jury testimony be postponed. The Special Master searched Gabbert in the private room, and Gabbert produced two pages of a three-page letter from Lyle Menendez to Baker.

At approximately the same time that the search of Gab-bert was taking place, Najera called Baker before the grand jury and began to question her. After being sworn, Najera asked Baker whether she was acquainted with Lyle Menen-dez. Baker replied that she had been unable to speak with her attorney because he was “still with the special master.” Brief for Petitioners 6. A short recess was taken during which time Baker was unable to speak with Gabbert. He was aware that Baker sought to speak with him, but apparently stated that the prosecutors would simply have to delay the questioning until they finished searching him. Baker returned to the grand jury room and declined to answer the question “upon the advice of [my] counsel” on the basis of her Fifth Amendment privilege against self-inerimination. Id., at 7. Najera asked a followup question, and Baker again asked for a short recess to confer with Gabbert. Baker was again unable to locate Gabbert, and she again returned to the grand jury room and asserted her Fifth Amendment privilege. At this point, the grand jury recessed.

actions of the prosecutors were illegal, Gabbert brought suit against them and other officials in Federal District Court under Rev. Stat. § 1979, 42 U. S. C. § 1988. Relevant to this appeal by Conn and Najera, he contended that his Fourteenth Amendment right to practice his profession without unreasonable government interference was violated when the prosecutors executed a search warrant at the same time his client was testifying before the grand jury. Conn and Najera moved for summary judgment on the basis of qualified immunity, and the District Court granted the motion.

The Court of Appeals reversed in part, holding that Conn and Najera were not entitled to qualified immunity on Gab-bert’s Fourteenth Amendment claim. 131 F. 3d 793 (CA9 1997). Relying on Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572 (1972), and earlier cases of this Court recognizing a right to choose one’s vocation, the Court of Appeals concluded that Gabbert had a right to practice his profession without undue and unreasonable government interference. 131 F. 3d, at 800. The Court of Appeals also held that based upon notions of ‘“common sense,’” id., at 801, the right allegedly violated in this case was clearly established, and as a result, Conn and Najera were not entitled to qualified immunity: “The plain and intended result [of the prosecutors’ actions] was to prevent Gabbert from consulting with Baker during her grand jury appearance. These actions were not objectively reasonable, and thus the prosecutors are not protected by qualified immunity from answering Gabbert’s Fourteenth Amendment claim.” Id., at 802-803. We granted certiorari and now reverse.

Section 1983 provides a federal cause any person who, acting under color of state law, deprives another of his federal rights. 42 U. S. C. § 1983. In order to prevail in a § 1983 action for civil damages from a government official performing discretionary functions, the defense of qualified immunity that our cases have recognized requires that the official be shown to have violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Thus a court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation. See Siegert v. Gilley, 500 U. S. 226, 232-233 (1991); see also County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998).

We find no support in our cases for the conclusion of the Court of Appeals that Gabbert had a Fourteenth Amendment right which was violated in this case. The Court of Appeals relied primarily on Board of Regents v. Roth. In Roth, this Court repeated the pronouncement in Meyer v. Nebraska, 262 U. S. 390, 399 (1923), that the liberty guaranteed by the Fourteenth Amendment “‘denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.’ ” Roth, supra, at 572 (quoting Meyer, supra, at 399). But neither Roth nor Meyer even came close to identifying the asserted “right” violated by the prosecutors in this case. Meyer held that substantive due process forebade a State from enacting a statute that prohibited teaching in any language other than English. 262 U. S., at 399, 402-403. And Roth was a procedural due process case which held that an at-will college professor had no “property” interest in his job within the meaning of the Fourteenth Amendment so as to require the university to hold a hearing before terminating him. 408 U. S., at 578. Neither case will bear the weight placed upon it by either the Court of Appeals or Gabbert: Neither ease supports the conclusion that the actions of the prosecutors in this case deprived Gabbert of a liberty interest in practicing law.

Similarly, none of the other eases relied upon by the Court of Appeals or suggested by Gabbert provide any more than scant metaphysical support for the idea that the use of a search warrant by government actors violates an attorney’s right to practice his profession. In a line of earlier cases, this Court has indicated that the liberty component of the Fourteenth Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of private employment, but a right which is nevertheless subject to reasonable government regulation. See, e. g., Dent v. West Virginia, 129 U. S. 114 (1889) (upholding a requirement of licensing before a person can practice medicine); Truax v. Raich, 239 U. S. 33, 41 (1915) (invalidating on equal protection grounds a state law requiring companies to employ 80% United States citizens). These cases all deal with a complete prohibition of the right to engage in a calling, and not the sort of brief interruption which occurred here.

Gabbert also relies on Schware v. of N. M., 353 U. S. 232, 238-239 (1957), for the proposition that a State cannot exclude a person from the practice of law for reasons that contravene the Due Process Clause. Schware held that former membership in the Communist Party and an arrest record relating to union activities could not be the basis for completely excluding a person from the practice of law. Like Dent, supra, and Truax, supra, it does not deal with a brief interruption as a result of legal process. No case of this Court has held that such an intrusion can rise to the level of a violation of the Fourteenth Amendment’s liberty right to choose and follow one’s calling. That right is simply not infringed by the inevitable interruptions of our daily routine as a result of legal process, which all of us may experience from time to time.

Gabbert argues search interfered with his client’s right to have him outside the grand jury room and available to consult with her. A grand jury witness has no constitutional right to have counsel present during the grand jury proceeding, United States v. Mandujano, 425 U. S. 564, 581 (1976), and no decision of this Court has held that a grand jury witness has a right to have her attorney present outside the jury room. We need not decide today whether such a right exists, because Gab-bert clearly had no standing to raise the alleged infringement of the rights of his client Tracy Baker. “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U. S. 490, 499 (1975).

course does have standing to complain of the allegedly unreasonable timing of the execution of the search warrant to prevent him from advising his client. In essence then, he argues that the prosecutors searched him in an unreasonable manner. We have held that where another provision of the Constitution “provides an explicit textual source of constitutional protection,” a court must assess a plaintiff’s claims under that explicit provision and “not the more generalized notion of ‘substantive due process.’ ” Graham v. Connor, 490 U. S. 386, 395 (1989). Challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth.

We hold that the Fourteenth Amendment right to practice one’s calling is not violated by the execution of a search warrant, whether calculated to annoy or even to prevent consultation with a grand jury witness. In so holding, we thus of course pretermit the question whether such a right was “clearly established” as of a given day. The judgment of the Court of Appeals holding to the contrary is therefore reversed.

It is so ordered.

Justice Stevens,

concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B-17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable — an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion — that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante, at 293 — is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.

      Gabbert also brought a claim under § 1983 that Conn and Najera had violated his rights under the Fourth Amendment. That claim is not before us and we express no opinion on it.


author:
Justice Scalia Justice Breyer,
      Justice Stevens,

text:
    WYOMING v. HOUGHTON
    No. 98-184.
    Argued January 12, 1999
    Decided April 5, 1999

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Thomas, and Breyer, JJ., joined. Breyek, J., filed a concurring opinion, post, p. 307. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined, post, p. 309.

      Paul S. Rehurek, Deputy Attorney General of Wyoming, argued the cause for petitioner. With him on the briefs were Gay Woodhouse, Acting Attorney General, and D. Michael Pauling, Senior Assistant Attorney General.

      Barbara McDowell argued the cause for as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben.

      Donna D. Domorikos, by appointment of the Court, 525 U. S. 980, argued the cause for respondent. With her on the brief were Sylvia Lee Hackl and Michael Dinnerstein.

      Briefs of amici curiae urging reversal were filed for the State of Kentucky et al. by Albert B. Chandler III, Attorney General of Kentucky, Matthew Nelson, Assistant Attorney General, Dan Schweitzer, and John M. Bailey, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E, Lwngren of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Gus F. Diaz of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vasco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, and Jan Graham of Utah; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations by Stephen R. McSpadden.

      urging affirmance were filed for the Legal Aid Society of New York City et al. by M. Sue Wycoff; for the National Association of Criminal Defense Lawyers by Paul Mogin and Lisa B. Kern-ler; and for the Rutherford Institute by Steven H. Aden and John W. Whitehead.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether police officers violate the Fourth Amendment when they search a passenger’s personal belongings inside an automobile that they have probable cause to believe contains contraband.

I

In the early morning hours of July 23, 1995, a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light. There were three passengers in the front seat of the car: David Young (the driver), his girlfriend, and respondent. While questioning Young, the officer noticed a hypodermic syringe in Young’s shirt pocket. He left the occupants under the supervision of two backup officers as he went to get gloves from his patrol ear. Upon his return, he instructed Young to step out of the car and place the syringe on the hood. The officer then asked Young why he had a syringe; with refreshing candor, Young replied that he used it to take drugs.

At this point, the backup officers ordered the two passengers out of the ear and asked them for identification. Respondent falsely identified herself as “Sandra James” and stated that she did not have any identification. Meanwhile, in light of Young’s admission, the officer searched the passenger compartment of the car for contraband. On the back seat, he found a purse, which respondent claimed as hers. He removed from the purse a wallet containing respondent’s driver’s license, identifying her properly as Sandra K. Houghton. When the officer asked her why she had lied about her name, she replied: “In case things went bad.”

Continuing purse, brown pouch and a black wallet-type container. Respondent denied that the former was hers, and claimed ignorance of how it came to be there; it was found to contain drug paraphernalia and a syringe with 60 ccs of methamphetamine. Respondent admitted ownership of the black container, which was also found to contain drug paraphernalia, and a syringe (which respondent acknowledged was hers) with 10 ccs of methamphetamine — an amount insufficient to support the felony conviction at issue in this ease. The officer also found fresh needle-track marks on respondent’s arms. He placed her under arrest.

The State of Wyoming possession of methamphetamine in a liquid amount greater than three-tenths of a gram. See Wyo. Stat. Ann. §35-7-1031(c)(iii) (Supp. 1996). After a hearing, the trial court denied her motion to suppress all evidence obtained from the purse as the fruit of a violation of the Fourth and Fourteenth Amendments. The court held that the officer had probable cause to search the car for contraband, and, by extension, any containers therein that could hold such contraband. A jury convicted respondent as charged.

The Wyoming Supreme Court, by divided vote, reversed the conviction and announced the following rule:

“Generally, once probable cause is established to search a vehicle, an officer is entitled to search all containers therein which may contain the object of the search. However, if the officer knows or should know that a container is the personal effect of a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection.” 956 P. 2d 368, 872 (1998).

The court held that the search of respondent’s purse violated the Fourth and Fourteenth Amendments because the officer “knew or should have known that the purse did not belong to the driver, but to one of the passengers,” and because “there was no probable cause to search the passengers’ personal effects and no reason to believe that contraband had been placed within the purse.” Ibid. We granted certio-rari, 524 U. S. 983 (1998).

II

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular governmental action, violates this provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed. See Wilson v. Arkansas, 514 U. S. 927, 931 (1995); California v. Hodari D., 499 U. S. 621, 624 (1991). Where that inquiry yields no answer, we must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. See, e. g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652-653 (1995).

It is uncontested in the ease had probable cause to believe there were illegal drugs in the car. Carroll v. United States, 267 U. S. 132 (1925), similarly involved the warrantless search of a car that law enforcement officials had probable cause to believe contained contraband — in that case, bootleg liquor. The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799 — as well as subsequent legislation from the founding era and beyond — that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty. Id., at 150-153. See also United States v. Ross, 456 U. S. 798, 806 (1982); Boyd v. United States, 116 U. S. 616, 623-624 (1886). Thus, the Court held that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant” where probable cause exists. Carroll, supra, at 153.

We have furthermore that the Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers within an automobile. In Ross, supra, we upheld as reasonable the warrantless search of a paper bag and leather pouch found in the trunk of the defendant’s ear by officers who had probable cause to believe that the trunk contained drugs. Justice Stevens, writing for the Court, observed:

"It is noteworthy that the early legislation on which the Court relied in Carroll concerned the enforcement of laws imposing duties on imported merchandise. . . . Presumably such merchandise was shipped then in containers of various kinds, just as it is today. Since Congress had authorized warrantless searches of vessels and beasts for imported merchandise, it is inconceivable that it intended a customs officer to obtain a warrant for every package discovered during the search; certainly Congress intended customs officers to open shipping containers when necessary and not merely to examine the exterior of cartons or boxes in which smuggled goods might be concealed. During virtually the entire history of our country — whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile — it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search.” Id., at 820, n. 26.

Ross summarized its holding as follows: "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id., at 825 (emphasis added). And our later cases describing Ross have characterized it as applying broadly to all containers within a car, without qualification as to ownership. See, e. g., California v. Acevedo, 500 U. S. 565, 572 (1991) (“[TJhis Court in Ross took the critical step of saying that closed containers in ears could be searched without a warrant because of their presence within the automobile”); United States v. Johns, 469 U. S. 478, 479-480 (1985) (Ross “held that if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search”).

no passenger in Ross, and it was not claimed that the package in the trunk belonged to anyone other than the driver. Even so, if the rule of law that Ross announced were limited to contents belonging to the driver, or contents other than those belonging to passengers, one would have expected that substantial limitation to be expressed. And, more importantly, one would have expected that limitation to be apparent in the historical evidence that formed the basis for Ross’,s holding. In fact, however, nothing in the statutes Ross relied upon, or in the practice under those statutes, would except from authorized warrantless search packages belonging to passengers on the suspect ship, horse-drawn carriage, or automobile.

Finally, we must derlying the rule announced in Ross is fiilly consistent — as respondent’s proposal is not — with the balance of our Fourth Amendment jurisprudence. Ross concluded from the historical evidence that the permissible scope of a warrantless car search “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” 456 U. S., at 824. The same principle is reflected in an earlier case involving the constitutionality of a search warrant directed at premises belonging to one who is not suspected of any crime: “The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 486 U. S. 547, 556 (1978). This statement was illustrated by citation and description of Carroll, 267 U. S., at 158-159, 167. 436 U. S., at 556-557.

In sum, neither Ross nor relied upon admits of a distinction among packages or containers based on ownership. When there is probable cause to search for contraband in a ear, it is reasonable for police officers — like customs officials in the founding era — to examine packages and containers without a showing of individualized probable cause for each one. A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car.

Even if the historical evidence, as described by Ross, were thought to be equivocal, we would find that the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger’s belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which “trave[l] public thoroughfares,” Cardwell v. Lewis, 417 U. S. 583, 590 (1974), “seldom serv[e] as ... the repository of personal effects,” ibid., are subjected to police stop and examination to enforce “pervasive” governmental controls “[a]s an everyday occurrence,” South Dakota v. Opperman, 428 U. S. 364, 368 (1976), and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny.

degree of intrusiveness upon personal privacy and indeed even personal dignity — the two cases the Wyoming Supreme Court found dispositive differ substantially from the package search at issue here. United States v. Di Re, 332 U. S. 581 (1948), held that probable cause to search a ear did not justify a body search of a passenger. And Ybarra v. Illinois, 444 U. S. 85 (1979), held that a search warrant for a tavern and its bartender did not permit body searches of all the bar’s patrons. These eases turned on the unique, significantly heightened protection afforded against searches of one’s person. “Even a limited search of the outer clothing . . . constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U. S. 1, 24-25 (1968). Such traumatic consequences are not to be expected when the police examine an item of personal property found in a car.

Whereas the passenger’s privacy expectations are, as we have described, considerably diminished, the governmental interests at stake are substantial. Effective law enforcement would be appreciably impaired without the ability to search a passenger’s personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the ear. As in all car-search eases, the “ready mobility” of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained. California v. Carney, 471 U. S. 386, 390 (1985). In addition, a car passenger — unlike the unwitting tavern patron in Ybarra — will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. Cf. Maryland v. Wilson, 519 U. S. 408, 413-414 (1997). A criminal might be able to hide contraband in a passenger’s belongings as readily as in other containers in the ear, see, e. g., Rawlings v. Kentucky, 448 U. S. 98, 102 (1980) — perhaps even surreptitiously, without the passenger’s knowledge or permission. (This last possibility provided the basis for respondent’s defense at trial; she testified that most of the seized contraband must have been placed in her purse by her traveling companions at one or another of various times, including the time she was “half asleep” in the car.)

a search will not always be present, but the balancing of interests must be conducted with an eye to the generality of cases. To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger’s belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a “passenger’s property” rule would dramatically reduce the ability to find and seize contraband and evidence of crime. Of course these requirements would not attach (under the Wyoming Supreme Court’s rule) until the police officer knows or has reason to know that the container belongs to a passenger. But once a “passenger’s property” exception to car searches became widely known, one would expect passenger-confederates to claim everything as their own. And one would anticipate a bog of litigation — in the form of both civil lawsuits and motions to suppress in criminal trials — involving such questions as whether the officer should have believed a passenger’s claim of ownership, whether he should have inferred ownership from various objective factors, whether he had probable cause to believe that the passenger was a confederate, or to believe that the driver might have introduced the contraband into the package with or without the passenger’s knowledge. When balancing the competing interests, our determinations of “reasonableness” under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak.

Finally, if we were cal practice that Ross accurately described and summarized, it is perplexing why that exception should protect only property belonging to a passenger, rather than (what seems much more logical) property belonging to anyone other than the driver. Surely Houghton’s privacy would have been invaded to the same degree whether she was present or absent when her purse was searched. And surely her presence in the car with the driver provided more, rather than less, reason to believe that the two were in league. It may ordinarily be easier to identify the property as belonging to someone other than the driver when the purported owner is present to identify it — but in the many cases (like Ross itself) where the ear is seized, that identification may occur later, at the station house; and even at the site of the stop one can readily imagine a package clearly marked with the owner’s name and phone number, by which the officer can confirm the driver’s denial of ownership. The sensible rule (and the one supported by history and case law) is that such a package may be searched, whether or not its owner is present as a passenger or otherwise, because it may contain the contraband that the officer has reason to believe is in the car.

•fí ^

We hold that police officers with probable cause to search a car may inspect passengers’ belongings found in the ear that are capable of concealing the object of the search. The judgment of the Wyoming Supreme Court is reversed.

It is so ordered.

Justice Breyer,

concurring.

I join the Court’s opinion with the understanding that history is meant to inform, but not automatically to determine, the answer to a Fourth Amendment question. Ante, at 299-300. I also agree with the Court that when a police officer has probable cause to search a ear, say, for drugs, it is reasonable for that officer also to search containers within the car. If the police must establish a container’s ownership prior to the search of that container (whenever, for example, a passenger says “that’s mine”), the resulting uncertainty will destroy the workability of the bright-line rule set forth in United States v. Ross, 456 U. S. 798 (1982). At the same time, police officers with probable cause to search a car for drugs would often have probable cause to search containers regardless. Hence a bright-line rule will authorize only a limited number of searches that the law would not otherwise justify.

At the same time, I would point out certain limitations upon the scope of the bright-line rule that the Court describes. Obviously, the rule applies only to automobile searches. Equally obviously, the rule applies only to containers found within automobiles. And it does not extend to the search of a person found in that automobile. As the Court notes, and as United States v. Di Re, 332 U. S. 581, 586-587 (1948), relied on heavily by Justice Stevens’ dissent, makes clear, the search of a person, including even ‘“a limited search of the outer clothing,’ ” ante, at 303 (quoting Terry v. Ohio, 392 U. S. 1, 24-25 (1968)), is a very different matter in respect to which the law provides “significantly heightened protection.” Ante, at 303; cf. Ybarra v. Illinois, 444 U. S. 85, 91 (1979); Sibron v. New York, 392 U. S. 40, 62-64 (1968).

Less obviously, but in my view also important, that the container here at issue, a woman’s purse, was found at a considerable distance from its owner, who did not claim ownership until the officer discovered her identification while looking through it. Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. So I am tempted to say that a search of a purse involves an intrusion so similar to a search of one’s person that the same rule should govern both. However, given this Court’s prior cases, I cannot argue that the fact that the container was a purse automatically makes a legal difference, for the Court has warned against trying to make that kind of distinction. United States v. Ross, supra, at 822. But I can say that it would matter if a woman’s purse, like a man’s billfold, were attached to her person. It might then amount to a kind of “outer clothing,” Terry v. Ohio, supra, at 24, which under the Court’s cases would properly receive increased protection. See post, at 312-313 (Stevens, J., dissenting) (quoting United States v. Di Re, supra, at 587). In this ease, the purse was separate from the person, and no one has claimed that, under those circumstances, the type of container makes a difference. For that reason, I join the Court’s opinion.

Justice Stevens,

with whom Justice Souter and Justice Ginsburg join, dissenting.

After Wyoming’s highest court decided that a state highway patrolman unlawfully searched Sandra Houghton’s purse, the State of Wyoming petitioned for a writ of cer-tiorari. The State asked that we consider the propriety of searching an automobile passenger's belongings when the government has developed probable cause to search the vehicle for contraband based on the driver’s conduct. The State conceded that the trooper who searched Houghton’s purse lacked a warrant, consent, or “probable cause specific to the purse or passenger.” Pet. for Cert. i. In light of our established preference for warrants and individualized suspicion, I would respect the result reached by the Wyoming Supreme Court and affirm its judgment.

In all of our prior cases applying the automobile exception to the Fourth Amendment’s warrant requirement, either the defendant was the operator of the vehicle and in custody of the object of the search, or no question was raised as to the defendant’s ownership or custody. In the only automobile case confronting the search of a passenger defendant— United States v. Di Re, 332 U. S. 581 (1948) — the Court held that the exception to the warrant requirement did not apply. Id., at 583-587 (addressing searches of the passenger’s pockets and the space between his shirt and underwear, both of which uncovered counterfeit fuel rations). In Di Re, as here, the information prompting the search directly implicated the driver, not the passenger. Today, instead of adhering to the settled distinction between drivers and passengers, the Court fashions a new rule that is based on a distinction between property contained in elothing worn by a passenger and property contained in a passenger’s briefcase or purse. In cases on both sides of the Court’s newly minted test, the property is in a “container” (whether a pocket or a pouch) located in the vehicle. Moreover, unlike the Court, I think it quite plain that the search of a passenger’s purse or briefcase involves an intrusion on privacy that may be just as serious as was the intrusion in Di Re. See, e. g., New Jersey v. T. L. O., 469 U. S. 325, 339 (1985); Ex parte Jackson, 96 U. S. 727, 733 (1878).

Even apart proach is not dictated by precedent. For example, in United States v. Ross, 456 U. S. 798 (1982), we were concerned with the interest of the driver in the integrity of “his automobile,” id., at 823, and we categorically rejected the notion that the scope of a warrantless search of a vehicle might be “defined by the nature of the container in which the contraband is secreted,” id., at 824. “Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Ibid. We thus disapproved of a possible container-based distinction between a man’s pocket and a woman’s pocketbook. Ironically, while we concluded in Ross that “[pjrobable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab,” ibid., the rule the Court fashions would apparently permit a war-rantless search of a passenger’s briefcase if there is probable cause to believe the taxidriver had a syringe somewhere in his vehicle.

Nor am I persuaded that the mere tween a passenger and a driver provides an acceptable basis for presuming that they are partners in crime or for ignoring privacy interests in a purse. Whether or not the Fourth Amendment required a warrant to search Houghton’s purse, cf. Carroll v. United States, 267 U. S. 132, 153 (1925), at the very least the trooper in this case had to have probable cause to believe that her purse contained contraband. The Wyoming Supreme Court concluded that he did not. 956 P. 2d 363, 372 (1998); see App. 20-21.

Finally, in my view, the State’s legitimate interest in effective law enforcement does not outweigh the privacy concerns at issue. I am as confident in a police officer’s ability to apply a rule requiring a warrant or individualized probable cause to search belongings that are — as in this case — obviously owned by and in the custody of a passenger as is the Court in a “passenger-eonfederate[’]s” ability to circumvent the rule. Ante, at 305. Certainly the ostensible clarity of the Court’s rule is attractive. But that virtue is insufficient justification for its adoption. Arizona v. Hicks, 480 U. S. 321, 329 (1987); Mincey v. Arizona, 437 U. S. 385, 393 (1978). Moreover, a rule requiring a warrant or individualized probable cause to search passenger belongings is every bit as simple as the Court’s rule; it simply protects more privacy.

I would decide this case in accord we about passengers and privacy, rather than what we might have said in cases where the issue was not squarely presented. See ante, at 301-302. What Justice Jackson wrote for the Court 50 years ago is just as sound today:

“The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car. Necessity, an argument advanced in support of this search, would seem as strong a reason for searching guests of a house for which a search warrant had issued as for search of guests in a car for which none had been issued. By a parity of reasoning with that on which the Government disclaims the right to search occupants of a house, we suppose the Government would not contend that if it had a valid search warrant for the car only it could search the occupants as an incident to its execution. How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit?
“We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a ear. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.” Di Re, 332 U. S., at 587.

Accord, Ross, 456 U. S., at 823, 825 (the proper scope of a warrantless automobile search based on probable cause is “no broader” than the proper scope of a search authorized by a warrant supported by probable cause). Instead of applying ordinary Fourth Amendment principles to this case, the majority extends the automobile warrant exception to allow searches of passenger belongings based on the driver’s misconduct. Thankfully, the Court’s automobile-centered analysis limits the scope of its holding. But it does not justify the outcome in this case.

I respectfully dissent.

       The dissent begins its analysis, post, at 309-310 (opinion of Stevens, J.), with an assertion that this ease is governed by our decision in United States v. Di Re, 332 U. S. 581 (1948), which held, as the dissent describes it, that the automobile exception to the warrant requirement did not justify “searches of the passenger’s pockets and the space between his shirt and underwear,” post, at 309. It attributes that holding to “the settled distinction between drivers and passengers,” rather than to a distinction between search of the person and search of property, which the dissent claims is “newly minted” by today’s opinion — a “new rule that is based on a distinction between property contained in clothing worn by a passenger and property contained in a passenger’s briefcase or purse.” Post, at 309, 309-310.
      Jackson’s opinion in Di Re, which makes it very clear that it is precisely this distinction between seareh of the person and search of property that the ease relied upon:
      “The Government says warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car.” 332 U. S., at 587 (quoted post, at 312).
      Does the dissent really believe that Justice was house search could not inspect property belonging to persons found in the house — say a large standing safe or violin case belonging to the owner’s visiting godfather? Of course that'is not what Justice Jackson meant at all. He was referring precisely to that “distinction between property contained in clothing worn by a passenger and property contained in a passenger’s briefcase or purse” that the dissent disparages, post, at 309. This distinction between searches of the person and searches of property is assuredly not “newly minted,” see post, at 310. And if the dissent thinks “pockets” and “clothing” do not count as part of the person, it must believe that the only searches of the person are strip searches.

       The dissent is “confident in a police officer's ability to apply a rule requiring a warrant or individualized probable cause to search belongings that are ... obviously owned by and in the custody of a passenger,” pout, at 311. If this is the dissent’s strange criterion for warrant protection (“obviously owned by and in the custody of”) its preceding paean to the importance of preserving passengers’ privacy rings a little hollow on rehearing. Should it not be enough if the passenger says he owns the briefcase, and the officer has no concrete reason to believe otherwise? Or would the dissent consider that an example of “obvious” ownership? On reflection, it seems not at all obvious precisely what constitutes obviousness — and so even the dissent’s on-the-eheap protection of passengers’ privacy interest in their property turns out to be unclear, and hence unadministrable. But maybe the dissent does not mean to propose an obviously-owned-by-and-in-the-eustody-of test after all, since a few sentences later it endorses, simpliciter, “a rule requiring a warrant or individualized probable cause to search passenger belongings,” post, at 312. For the reasons described in text, that will not work.

       See, e. g., California v. Acevedo, 500 U. S. 565 (1991); California v. Carney, 471 U. S. 386 (1985); United States v. Johns, 469 U. S. 478 (1985); United States v. Ross, 456 U. S. 798 (1982); Carroll v. United States, 267 U. S. 132 (1925); 3 W. LaFave, Search and Seizure § 7.2(c), pp. 487-488, and n. 113 (3d ed. 1996); id., § 7.2(d), at 506, n. 167.

         See United States v. Di Re, 332 U. S. 581, 587 (1948) (“We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled”); Chandler v. Miller, 520 U. S. 305, 308 (1997) (emphasizing individualized suspicion); Ybarra v. Illinois, 444 U. S. 85, 91, 94-96 (1979) (explaining that "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,” and discussing Di Re); Brown v. Texas, 443 U. S. 47, 52 (1979); Sibron v. New York, 392 U. S. 40, 62-63 (1968); see also United States v. Padilla, 508 U. S. 77, 82 (1993) (per curiam) (“Expectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims. Participants in a criminal conspiracy may have such expectations or interests, but the conspiracy itself neither adds to nor detracts from them”).

      To my knowledge, we have never restricted ourselves to a two-step Fourth Amendment approach wherein the privacy and governmental interests at stake must be considered only if 18th-century common law “yields no answer.” Ante, at 299. Neither the precedent cited by the Court, nor the majority’s opinion in this case, mandate that approach. In a later discussion, the Court does attempt to address the contemporary privacy and governmental interests at issue in cases of this nature. Ante, at 303-306. Either the majority is unconvinced by its own recitation of the historical materials, or it has determined that considering additional factors is appropriate in any event. The Court does not admit the former; and of course the latter, standing alone, would not establish uncertainty in the common law as the prerequisite to looking beyond history in Fourth Amendment cases.

         In response to this dissent the Court has crafted an imaginative footnote suggesting that the Di Re decision rested, not on Di Re’s status as a mere occupant of the vehicle and the importance of individualized suspicion, but rather on the intrusive character of the search. See ante, at 303-304, n. 1. That the search of a safe or violin case would be less intrusive than a strip search does not, however, persuade me that the Di Re case would have been decided differently if Di Re had been a woman and the gas coupons had been found in her purse. Significantly, in commenting on the Carroll case immediately preceding the paragraphs that I have quoted in the text, the Di Re Court stated: “But even the National Prohibition Act did not direct the arrest of all occupants but only of the person in charge of the offending vehicle, though there is better reason to assume that no passenger in a car loaded with liquor would remain innocent of knowledge of the car’s cargo than to assume that a passenger must know what pieces of paper are carried in the pockets of the driver.” United States v. Di Re, 332 U. S., at 586-587.