author: Justice Ginsburg Justice Thomas,

text:
    THOMPSON v. KEOHANE, WARDEN, et al.
    No. 94-6615.
    Argued October 11, 1995
    Decided November 29, 1995

      Ginsburg, J., delivered the opinion of the Court, in which Stevens, O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 116.

      Julie R. O’Sullivan, by appointment of the Court, 513 U. S. 1137, argued the cause and filed briefs for petitioner.

      Cynthia M. Hora, Assistant Attorney General of Alaska, argued the cause for respondents. With her on the brief was Bruce M. Botelho, Attorney General, pro se.

      Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Carolyn J. Mosley, Assistant Attorney General, Grant Woods, Attorney General of Arizona, Daniel E. Lungren, Attorney General of California, Gale A. Norton, Attorney General of Colorado, John M. Bailey, Chief State’s Attorney of Connecticut, M. Jane Brady, Attorney General of Delaware, Margery S. Bronster, Attorney General of Hawaii, Alan G. Lance, Attorney General of Idaho, Pamela Carter, Attorney General of Indiana, Tom Miller, Attorney General of Iowa, Carla J. Stovall, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard P. Ieyoub, Attorney General of Louisiana, Andrew Ketterer, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Jerimiah W. “Jay” Nixon, Attorney General of Missouri, Joseph P. Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Jeffrey R. Howard, Attorney General of New Hampshire, Deborah T. Poritz, Attorney General of New Jersey, Dennis C. Vacco, Attorney General of New York, Michael F. Easley, Attorney General of North Carolina, Betty D. Montgomery, Attorney General of Ohio, Drew Edmondson, Attorney General of Oklahoma, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Charles Molony Condon, Attorney General of South Carolina, Mark Bar-nette, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Dan Morales, Attorney General of Texas, Jan Graham, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, James S. Gilmore III, Attorney General of Virginia, and Christine O. Gregoire, Attorney General of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

   Justice Ginsburg

delivered the opinion of the Court.

During a two-hour, tape-recorded session at Alaska state trooper headquarters, petitioner Carl Thompson confessed that he killed his former wife. Thompson’s confession was placed in evidence at the ensuing Alaska state-court trial, and he was convicted of first-degree murder. Challenging his conviction in a federal habeas corpus proceeding, Thompson maintained that the Alaska troopers gained his confession without according him the warnings Miranda v. Arizona, 384 U. S. 436 (1966), requires: that he could remain silent; that anything he said could be used against him in court; and that he was entitled to an attorney, either retained or appointed.

Miranda warnings are due only when a suspect interrogated by the police is “in custody.” The state trial and appellate courts determined that Thompson was not “in custody” when he confessed. The statute governing federal habeas corpus proceedings, 28 U. S. C. § 2254, directs that, ordinarily, state-court fact findings “shall be presumed to be correct.” § 2254(d). The question before this Court is whether the state-court determination that Thompson was not “in custody” when he confessed is a finding of fact warranting a presumption of correctness, or a matter of law calling for independent review in federal court. We hold that the issue whether a suspect is “in custody,” and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review.

I

On September 10, 1986, two moose hunters discovered the body of a dead woman floating in a gravel pit lake on the outskirts of Fairbanks, Alaska. The woman had been stabbed 29 times. Notified by the hunters, the Alaska state troopers issued a press release seeking assistance in identifying the body. Thompson called the troopers on September 11 to inform them that his former wife, Dixie Thompson, fit the description in the press release and that she had been missing for about a month. Through a dental examination, the troopers conclusively established that the corpse was Dixie Thompson. On September 15, a trooper called Thompson and asked him to come to headquarters, purportedly to identify personal items the troopers thought belonged to Dixie Thompson. It is now undisputed, however, that the trooper’s primary reason for contacting Thompson was to question him about the murder.

Thompson drove to the troopers’ headquarters in his pickup truck and, upon arriving, immediately identified the items as Dixie’s. He remained at headquarters, however, for two more hours while two unarmed troopers continuously questioned him in a small interview room and tape-recorded the exchange. The troopers did not inform Thompson of his Miranda rights. Although they constantly assured Thompson he was free to leave, they also told him repeatedly that they knew he had killed his former wife. Informing Thompson that execution of a search warrant was underway at his home, and that his truck was about to be searched pursuant to another warrant, the troopers asked questions that invited a confession. App. 43-79. Eventually, Thompson told the troopers he killed Dixie.

As promised, the troopers permitted Thompson to leave, but impounded his truck. Left without transportation, Thompson accepted the troopers’ offer of a ride to his friend’s house. Some two hours later, the troopers arrested Thompson and charged him with first-degree murder.

The Alaska trial court, without holding an evidentiary hearing, denied Thompson’s motion to suppress his September 15 statements. Tr. 118 (Dec. 12,1986); Tr. 142 (Mar. 18, 1987). Deciding the motion on the papers submitted, the trial court ruled that Thompson was not “in custody” for Miranda purposes, therefore the troopers had no obligation to inform him of his Miranda rights. App. 8-9. Applying an objective test to resolve the “in custody” question, the court asked whether “ ‘a reasonable person would feel he was not free to leave and break off police questioning.’” Id., at 7 (quoting Hunter v. State, 590 P. 2d 888, 895 (Alaska 1979)). These features, the court indicated, were key: Thompson arrived at the station in response to a trooper’s request; two unarmed troopers in plain clothes questioned him; Thompson was told he was free to go at any time; and he was not arrested at the conclusion of the interrogation. App. 7-8. Although the trial court held that, under the totality of the circumstances, a reasonable person would have felt free to leave, it also observed that the troopers’ subsequent actions — releasing and shortly thereafter arresting Thompson — rendered the question “very close.” Id., at 8-9.

After a trial, at which the prosecution played the tape-recorded confession, the jury found Thompson guilty of first-degree murder and tampering with evidence. The Court of Appeals of Alaska affirmed Thompson’s conviction, concluding, among other things, that the troopers had not placed Thompson “in custody,” and therefore had no obligation to give him Miranda warnings. Thompson v. State, 768 P. 2d 127,131 (Alaska App. 1989). The Alaska Supreme Court denied discretionary review. App. 24.

Thompson filed a petition for a writ of habeas corpus in the United States District Court for the District of Alaska. The District Court denied the writ, according a presumption of correctness under 28 U. S. C. § 2254(d) to the state court’s conclusion that, when Thompson confessed, he was not yet “in custody” for Miranda purposes. App. 37. The Court of Appeals for the Ninth Circuit affirmed without publishing an opinion. 34 F. 3d 1073 (1994). Based on Circuit precedent, the court held that “a state court’s determination that a defendant was not in custody for purposes of Miranda is a question of fact entitled to the presumption of correctness under 28 U. S. C. § 2254(d).” App. 41.

Federal Courts of Appeals disagree on the issue Thompson asks us to resolve: whether state-court “in custody” determinations are matters of fact entitled to a presumption of correctness under 28 U. S. C. § 2254(d), or mixed questions of law and fact warranting independent review by the federal habeas court. Compare Feltrop v. Delo, 46 F. 3d 766, 773 (CA8 1995) (applying presumption of correctness), with Jacobs v. Singletary, 952 F. 2d 1282, 1291 (CA11 1992) (conducting independent review). Because uniformity among federal courts is important on questions of this order, we granted certiorari to end the division of authority. 513 U. S. 1126 (1995). We now hold that the 28 U. S. C. § 2254(d) presumption does not apply to “in custody” rulings; accordingly, we vacate the Ninth Circuit’s judgment.

II

“[I]n-custody interrogation^],” this Court recognized in Miranda v. Arizona, place “inherently compelling pressures” on the persons interrogated. 384 U. S., at 467. To safeguard the uncounseled individual’s Fifth Amendment privilege against self-incrimination, the Miranda Court held, suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation. Id., at 444. The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Ibid.; see also Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam) (duty to give Miranda warnings is triggered “only where there has been such a restriction on a person’s freedom as to render him ‘in custody’ ”) (quoted in Stansbury v. California, 511 U. S. 318, 322 (1994) (per curiam)). Our task in petitioner Thompson’s case is to identify the standard governing federal habeas courts’ review of state-court “in custody” determinations.

A

Section 2254 governs federal habeas corpus proceedings instituted by persons in custody pursuant to the judgment of a state court. In such proceedings, § 2254(d) declares, state-court determinations of “a factual issue” “shall be presumed to be correct” absent one of the enumerated exceptions. This provision, added in a 1966 amendment, Act of Nov. 2, 1966, Pub. L. 89-711, 80 Stat. 1105-1106, received the Court’s close attention in Miller v. Fenton, 474 U. S. 104 (1985). As the Miller Court observed, § 2254(d) “was an almost verbatim codification of the standards delineated in Townsend v. Sain, 372 U. S. 293 (1963), for determining when a district court must hold an evidentiary hearing before acting on a habeas petition.” Miller, 474 U. S., at 111. Townsend counseled that, if the habeas petitioner has had in state court “a full and fair hearing . . . resulting in reliable findings,” the federal court “ordinarily should . . . accept the facts as found” by the state tribunal. 372 U. S., at 318. Section 2254(d) essentially “elevated [the Townsend Court’s] exhortation into a mandatory presumption of correctness.” Miller, 474 U. S., at 111-112; see also id., at 112 (emphasizing respect appropriately accorded “a coequal state judiciary” and citing Culombe v. Connecticut, 367 U. S. 568, 605 (1961) (opinion of Frankfurter, J.)).

Just as Townsend’s instruction on the respect appropriately accorded state-court factfindings is now captured in the § 2254(d) presumption, so we have adhered to Townsend’s definition of the §2254(d) term “factual issue.” The Townsend Court explained that by “‘issues of fact,’” it meant “basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators ....’” 372 U. S., at 309, n. 6 (quoting Brown v. Allen, 344 U. S. 443, 506 (1953) (opinion of Frankfurter, J.)). “So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations,” the Townsend Court added, “are not facts in this sense.” 372 U. S., at 309, n. 6. In applying § 2254(d), we have reaffirmed that “basic, primary, or historical facts” are the “factual issue[s]” to which the statutory presumption of correctness dominantly relates. See, e. g., Miller, 474 U. S., at 112 (“[Subsidiary factual questions” in alleged involuntariness of confession cases are subject to the § 2254(d) presumption, but “the ultimate question” — requiring a “totality of the circumstances” assessment — “is a matter for independent federal determination.”); Cuyler v. Sullivan, 446 U. S. 335, 342 (1980) (“mixed determination[s] of law and fact” generally are not subject to the § 2254(d) presumption of correctness).

It must be acknowledged, however, “that the Court has not charted an entirely clear course in this area.” Miller, 474 U. S., at 113. In regard to § 2254(d), as in other contexts, the proper characterization of a question as one of fact or law is sometimes slippery. See ibid,.; Wainwright v. Witt, 469 U. S. 412, 429 (1985) (“It will not always be easy to separate questions of ‘fact’ from ‘mixed questions of law and fact’ for § 2254(d) purposes . . . .”). Two lines of decisions compose the Court’s § 2254(d) law/fact jurisprudence.

In several cases, the Court has classified as “factual issues” within §2254(d)’s compass questions extending beyond the determination of “what happened.” This category notably includes: competency to stand trial (e. g., Maggio v. Fulford, 462 U. S. 111, 117 (1983) (per curiam,)); and juror impartiality (e. g., Witt, 469 U. S., at 429; Patton v. Yount, 467 U. S. 1025, 1036 (1984); Rushen v. Spain, 464 U. S. 114, 120 (1983)). While these issues encompass more than “basic, primary, or historical facts,” their resolution depends heavily on the trial court’s appraisal of witness credibility and demeanor. See, e. g., Witt, 469 U. S., at 429 (Although the trial court is “applying some kind of legal standard to what [it] sees and hears,” its “predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record.”). This Court has reasoned that a trial court is better positioned to make decisions of this genre, and has therefore accorded the judgment of the jurist-observer “presumptive weight.” Miller, 474 U. S., at 114 (when an “issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court”).

On the other hand, the Court has ranked as issues of law for § 2254(d) purposes: the voluntariness of a confession (Miller, 474 U. S., at 116); the effectiveness of counsel’s assistance (Strickland v. Washington, 466 U. S. 668, 698 (1984)); and the potential conflict of interest arising out of an attorney’s representation of multiple defendants (Cuyler, 446 U. S., at 341-342). “What happened” issues in these cases warranted a presumption of correctness, but the Court declared “the ultimate question” outside §2254(d)’s domain because of its “uniquely legal dimension.” Miller, 474 U. S., at 116; see also Sumner v. Mata, 455 U. S. 591, 597 (1982) (per curiam) (“[T]he constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254(d).”); Brewer v. Williams, 430 U. S. 387, 397, and n. 4, 403-404 (1977) (waiver of Sixth Amendment right to assistance of counsel is not a question of historical fact, but rather requires application of constitutional principles to facts).

B

The ultimate “in custody” determination for Miranda purposes, we are persuaded, fits within the latter class of cases. Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve “the ultimate inquiry”: “[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam) (quoting Mathiason, 429 U. S., at 495). The first inquiry, all agree, is distinctly factual. State-court findings on these scene- and action-setting questions attract a presumption of correctness under 28 U. S. C. § 2254(d). The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination, we hold, presents a “mixed question of law and fact” qualifying for independent review.

The practical considerations that have prompted the Court to type questions like juror bias and competency as “factual issue[s],” and therefore governed by § 2254(d)’s presumption of correctness, are not dominant here. As this case illustrates, the trial court’s superior capacity to resolve credibility issues is not dispositive of the “in custody” inquiry. Credibility determinations, as in the case of the alleged involuntariness of a confession, see Miller, 474 U. S., at 112, may sometimes contribute to the establishment of the historical facts and thus to identification of the “totality of the circumstances.” But the crucial question entails an evaluation made after determination of those circumstances: if encountered by a “reasonable person,” would the identified circumstances add up to custody as defined in Miranda? See Berkemer v. McCarty, 468 U. S. 420, 442 (1984) (court must assess “how a reasonable man in the suspect’s position would have understood his situation”); cf. Miller, 474 U. S., at 116-117 (“ [Assessments of credibility and demeanor are not crucial to the proper resolution of the ultimate issue of ‘voluntariness.’ ”).

Unlike the voir dire of a juror, Patton, 467 U. S., at 1038, or the determination of a defendant’s competency, Maggio, 462 U. S., at 117, which “take[s] place in open court on a full record,” Miller, 474 U. S., at 117, the trial court does not have a first-person vantage on whether a defendant was “in custody” for Miranda purposes. See 474 U. S., at 117 (police interrogations yielding confessions ordinarily occur, not in court, but in an “inherently more coercive environment”). Furthermore, in fathoming the state of mind of a potential juror or a defendant in order to answer the questions, “Is she free of bias?,” “Is he competent to stand trial?,” the trial court makes an individual-specific decision, one unlikely to have precedential value. In contrast, “in custody” determinations do guide future decisions. We thus conclude that once the historical facts are resolved, the state court is not “in an appreciably better position than the federal habeas court to make [the ultimate] determination” of the consistency of the law enforcement officer’s conduct with the federal Miranda warning requirement. See 474 U. S., at 117.

Notably, we have treated the “in custody” question as one of law when States complained that their courts had erroneously expanded the meaning of “custodial interrogation.” See Beheler, 463 U. S., at 1121-1125 (summarily reversing California Court of Appeal’s judgment that respondent was “in custody”); Mathiason, 429 U. S., at 494-496 (summarily reversing Oregon Supreme Court’s determination that respondent was “in custody”); cf. Oregon v. Hass, 420 U. S. 714, 719 (1975) (“[A] State may not impose ... greater restrictions [on police activity] as a matter of federal constitutional law when this Court specifically refrains from imposing them.”). It would be anomalous to type the question differently when an individual complains that the state courts had erroneously constricted the circumstances that add up to an “in custody” conclusion.

Classifying “in custody” as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As our decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law. See, e. g., Berkemer, 468 U. S., at 436-439 (routine traffic stop — typically temporary, brief, and public — does not place driver “in custody” for Miranda warning purposes); see also Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 273-276 (1985) (“norm elaboration occurs best when the Court has power to consider fully a series of closely related situations”; case-by-case elaboration when a constitutional right is implicated may more accurately be described as law declaration than as law application).

* * *

Applying §2254(d)’s presumption of correctness to the Alaska court’s “in custody” determination, both the District Court and the Court of Appeals ruled that Thompson was not “in custody” and thus not entitled to Miranda warnings. Because we conclude that state-court “in custody” determinations warrant independent review by a federal habeas court, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

with whom The Chief Justice joins,

dissenting.

Carl Thompson murdered his ex-wife, stabbing her 29 times. He then wrapped her body in chains and a bedspread and tossed the corpse into a water-filled gravel pit. As part of their investigation, police officers in Fairbanks, Alaska, questioned Thompson about his role in the murder, and Thompson confessed. Thompson was repeatedly told that he could leave the interview and was, in fact, permitted to leave at the close of questioning. I believe that the Alaska trial judge — who first decided this question almost a decade ago — was in a far better position than a federal habeas court to determine whether Thompson was “in custody” for purposes of Miranda v. Arizona, 384 U. S. 436 (1966). So long as that judgment finds fair support in the record, I would presume that it is correct. I dissent.

To determine whether a person is “in custody” under Miranda, “a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” Stansbury v. California, 511 U. S. 318, 322 (1994) (quoting California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam), quoting in turn Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam)). “‘[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.’” 511 U. S., at 324 (quoting Berkemer v. McCarty, 468 U. S. 420, 442 (1984)).

I agree with the majority that a legal standard must be applied by a state trial judge in making the Miranda custody inquiry. In light of our more recent decisions applying § 2254(d), however, I do not agree that the standards articulated in Townsend v. Sain, 372 U. S. 293 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992), for distinguishing factual issues from mixed questions of law and fact, dictate a result either way in this case. See, e. g., Wainwright v. Witt, 469 U. S. 412, 429 (1985) (juror bias determination is a question of fact, even though “[t]he trial judge is of course applying some kind of legal standard to what he sees and hears”); Patton v. Yount, 467 U. S. 1025, 1037, n. 12 (1984) (juror bias is a question of fact although “[t]here are, of course, factual and legal questions to be considered in deciding whether a juror is qualified”). Because the Miranda custody issue “falls somewhere between a pristine legal standard and a simple historical fact,” we must decide, “as a matter of the sound administration of justice, [which] judicial actor is better positioned ... to decide the issue in question.” Miller v. Fenton, 474 U. S. 104, 114 (1985).

The state trial judge is, in my estimation, the best-positioned judicial actor to decide the relatively straightforward and fact-laden question of Miranda custody. See California v. Beheler, supra, at 1128 (Stevens, J., dissenting) (state “courts are far better equipped than we are to assess the police practices that are highly relevant to the determination whether particular circumstances amount to custodial interrogation”). In making the custody determination, the state trial judge must consider a complex of diverse and case-specific factors in an effort to gain an overall sense of the defendant’s situation at the time of the interrogation. These factors include, at a minimum, the location, timing, and length of the interview, the nature and tone of the questioning, whether the defendant came to the place of questioning voluntarily, the use of physical contact or physical restraint, and the demeanor of all of the key players, both during the interview and in any proceedings held in court. In assessing all of these facts, the state trial judge will often take live testimony, consider documentary evidence, and listen to audiotapes or watch videotapes of the interrogation. Assessments of credibility and demeanor are crucial to the ultimate determination, for the trial judge will often have to weigh conflicting accounts of what transpired. The trial judge is also likely to draw inferences, which are similarly entitled to deference, from “physical or documentary evidence or . . . other facts.” Anderson v. Bessemer City, 470 U. S. 564, 574 (1985). The Miranda custody inquiry is thus often a matter of “shades and degrees,” Withrow v. Williams, 507 U. S. 680, 712 (1993) (O’Connor, J., concurring in part and dissenting in part), that requires the state trial judge to make any number of “‘fact-intensive, close calls.’” Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 404 (1990) (citation omitted).

The majority is quite right that the test contains an objective component — how a “reasonable man in the suspect’s position would have understood his situation,” Stansbury v. California, supra, at 324 — but this alone cannot be disposi-tive of whether the determination should be reviewed deferentially. See, e. g., Cooter & Gell v. Hartmarx Corp., supra, at 402 (Rule 11 and negligence determinations, both of which involve objective tests, are subject to deferential review). “[T]he line between pure facts . . . and . . . the application to them of a legal standard that is as non-technical — as commonsensical — as reasonableness is a faint one.” United States v. Humphrey, 34 F. 3d 551, 559 (CA7 1994) (Posner, C. J., concurring). It distorts reality to say that all of the subtle, factbound assessments that go into determining what it was like to be in the suspect’s shoes simply go out the window when it comes time for the “ultimate inquiry,” ante, at 112, of how a reasonable person would have assessed the situation. “The state trial court [is] in the unique position, after observing [the defendant] and listening to the evidence presented at trial, to determine whether a reasonable person in [defendant’s] position would have felt free to leave the police station.” Purvis v. Dugger, 932 F. 2d 1413, 1419 (CA11 1991), cert. denied, 503 U. S. 940 (1992). It is only in light of these case-specific determinations that the reasonable person test can be meaningfully applied. See Cooter & Gell v. Hartmarx Corp., supra, at 402 (“Familiar with the issues and litigants, the [trial] court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard”).

For these reasons, I have no doubt that the state trier of fact is best situated to put himself in the suspect’s shoes, and consequently is in a better position to determine what it would have been like for a reasonable man to be in the suspect’s shoes. Federal habeas courts, often reviewing the cold record as much as a decade after the initial determination, are in an inferior position to make this assessment. Though some of the state court’s factual determinations may, perhaps, be reflected on the record, many of the case-specific assessments that underlie the state trial judge’s ultimate determination are subtle, difficult to reduce to writing, and unlikely to be preserved in any meaningful way for review on appeal. “State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect.” Brecht v. Abrahamson, 507 U. S. 619, 636 (1993). “Absent indication to the contrary, state courts should be presumed to have applied federal law as faithfully as federal courts.” Withrow v. Williams, supra, at 723 (Scalia, J., concurring in part and dissenting in part). We insult our colleagues in the States when we imply, as we do today, that state judges are not sufficiently competent and reliable to make a decision as straightforward as whether a person was in custody for purposes of Miranda. See 507 U. S., at 714 (O’Connor, J., concurring in part and dissenting in part) (“We can depend on law enforcement officials to administer [Miranda] warnings in the first instance and the state courts to provide a remedy when law enforcement officers err”).

I also see no reason to remand this case to the Ninth Circuit for further analysis. There is no dispute that Thompson came to the police station voluntarily. There is no dispute that he was repeatedly told he could leave the police station at any time. And it is also clear that he left the police station freely at the end of the interrogation. In California v. Beheler, 463 U. S. 1121 (1983) (per curiam), we held that a person is not in custody if “the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by police after a brief interview.” Ibid. And in Oregon v. Mathiason, 429 U. S. 492 (1977) (per cu-riam), we found it “clear” that the defendant was not in Miranda custody where he “came voluntarily to the police station,... was immediately informed that he was not under arrest,” and “[a]t the close of a Vfc-hour interview ... did in fact leave the police station without hindrance.” Id., at 495; see also ibid. (“Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect”). Because Thompson cannot establish a Miranda violation even under de novo review, I would resolve that question now, and avoid putting the State of Alaska to the uncertainty and expense of defending for the sixth time in nine years an eminently reasonable judgment secured against a confessed murderer.

I respectfully dissent.

       These passages from the transcript of the tape-recorded interrogation indicate the tenor of the questioning:
      “Q Do you know — of course, I don’t mean to take up a lot of your time, you — you can leave any time that you want to, if you’ve got something else going on.
      “A Oh no (indiscernible) around here, no.
      “Q I know we called you and probably woke you up and....

        “A No, I was just laying there.
      “Q Okay. But you know, you can go any time you want to. We got a — you know, we’re trying to — trying to crack on this thing, and I — I don’t imagine it’s any secret to you that there are some of your — your friends or associates who have been kind of calling up and saying, you know, they’ve been pointing at you. ...
      “A Yeah, that (indiscernible) guy you know and we’ve been friends for ten years, you know, and this guy is starting to say stuff that I never even said....” App. 44-45.
      “Q ... And I’m willing to work with you on this thing to make the best of a bad situation. I can’t tell you that this isn’t a bad situation. I mean you’re free to get up and walk out of here now and — and never talk to me again. But what I’m telling you now is this is probably the last chance we’ll have to — for you to say something that other people are gonna believe because let’s just — let’s just say that there’s enough (indiscernible) here already that we can — we can prove conclusively beyond a reasonable doubt that — that you were responsible for this thing — this thing. Well really there’s a lot that she’s responsible for, but you’re the guy that’s stuck with the problem....
      “A I’ve already told you the story.
      “Q . . . Well you haven’t told me the critical part and you haven’t told me the part about where Dixie gets killed.
      “A And I don’t know about that. That’s your guys’ job. You’re supposed to know that.
      “Q Well like I told you, we know the who, the where, the when, the how. The thing we don’t know is the why. And that’s — that’s the thing we’ve got to kind of get straight here today between you and I. See I know that you did this thing. There’s — there’s no question in my mind about that. I can see it. I can see it when I’m looking at you. And I know that you care about Dixie. I mean this isn’t something that you wanted to happen... .
      “Q .. . I think that now it’s the time for you to come honest about this thing, because if you turn around later and try to....
      “A I am being honest about it.
      “Q No, you haven’t. You told part of the truth and you told a lot of it, but you haven’t told all of it. ... I mean your — you’re not probably lying directly to me, but you’re lying by omission .... I can tell you that right now there’s a search warrant being served out at [your home] and a search warrant for your truck is gonna be served and we’ve got a forensic expert up from — from Anchorage ....
      “A Huh.
      “Q ... And I don’t believe that you’re a bad person. I really don’t.... [W]hat happened here was never planned, what happened here was one of these things that just happen.... And when it happened you’re stuck with this — I mean you’re stuck with a hell of a mess now. She’s got — she’s finally got you into more trouble than she can possibly imagine. I mean she’s brought this thing on you. She causes that.... I mean I don’t know whether she started the thing by grabbing the knife and saying she was gonna (indiscernible) at you and it got turned around or just what happened. I mean I don’t know those things. . . .” Id., at 49-51.

      The trial court also rejected Thompson’s contention that his confession was involuntary. On both direct and habeas review, Thompson unsuccessfully asserted the involuntariness of his confession. His petition to this Court, however, does not present that issue.

       It is unclear in this case what deference the Alaska appellate court accorded to the trial court’s conclusion that petitioner was not “in custody”; in later decisions, the Alaska Court of Appeals reviewed the trial courts’ “in custody” determinations for “clear error.” See Higgins v. State, 887 P. 2d 966, 971 (Alaska App. 1994); McKillop v. State, 857 P. 2d 358, 361 (Alaska App. 1993).

       The panel relied on Krantz v. Briggs, 983 F. 2d 961, 964 (CA9 1993), which held that state-court “in custody” determinations warrant a presumption of correctness under § 2254(d) if the state court made factfindings after a hearing on the merits.

       Claims that state courts have incorrectly decided Miranda issues, as Withrow v. Williams, 507 U. S. 680 (1993), confirms, are appropriately considered in federal habeas review.

       Section 2254(d) lists eight exceptions to the presumption of correctness. In full, 28 U. S. C. § 2254(d) reads:
      “In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after' a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
      “(1) that the merits of the factual dispute were not resolved in the State court hearing;
      “(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
      “(3) that the material facts were not adequately developed at the State court hearing;
      “(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
      “(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
      “(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
      “(7) that the applicant was otherwise denied due process of law in the State court proceeding;
      “(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
      “And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.”

       The list of circumstances warranting an evidentiary hearing in a federal habeas proceeding set out in H. R. Rep. No. 1384, 88th Cong., 2d Sess., 25 (1964), is similar to the list set out in Townsend v. Sain, 372 U. S. 293, 313 (1963). The legislative history further indicates that the House Judiciary Committee, in framing its recommendations, was mindful of the Court’s recent precedent, including Townsend. H. R. Rep. No. 1384, supra, at 24-25. See also 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 20.1a, pp. 537-538 (2d ed. 1994) (description of interplay between habeas statute and Townsend).

        Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), partially overruled Townsend on a point not relevant here; Keeney held that a “cause-and-prejudice” standard, rather than the “deliberate by-pass” standard, is the correct standard for excusing a habeas petitioner’s failure to develop a material fact in state-court proceedings. 504 U. S., at 5-6.

       See also Brown v. Allen, 344 U. S. 443, 507 (1953) (opinion of Frankfurter, J.) (“Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts, the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.”) (citation omitted).

       See, e. g., Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 401 (1990) (observing in regard to appellate review of sanctions imposed under Fed. Rule Civ. Proc. 11: “The Court has long noted the difficulty of distinguishing between legal and factual issues.”); Pullman-Standard v. Swint, 456 U. S. 273, 288 (1982) (acknowledging, in relation to appellate review of intent determinations in Title VII cases, “the vexing nature of the distinction between questions of fact and questions of law”).

       The “totality of the circumstances” cast of the “in custody” determination, contrary to respondents’ suggestions, does not mean deferential review is in order. See, e. g., Miller v. Fenton, 474 U. S. 104, 117 (1985) (state-court determination “whether, under the totality of the circumstances, the confession was obtained in a manner consistent with the Constitution” qualifies for independent review by federal habeas court).

       As earlier observed, see supra, at 105, the trial court decided Thompson’s motion to suppress his September 15 statements on the papers submitted without holding an evidentiary hearing.

       Respondents observe that “reasonable person” assessments, most prominently to gauge negligence in personal injury litigation, fall within the province of fact triers. See, e.g., Cooter & Gell, 496 U. S., at 402 (negligence determinations “generally reviewed deferentially”); McAllister v. United States, 348 U. S. 19, 20-23 (1954) (District Court finding of negligence was not “clearly erroneous”); 9A C. Wright & A. Miller, Federal Practice and Procedures § 2590 (2d ed. 1995). Traditionally, our legal system has entrusted negligence questions to jurors, inviting them to apply community standards. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §37, pp. 235-237 (5th ed. 1984). For that reason, “[t]he question usually is said to be one of fact,” although “it should be apparent that the function of the jury in fixing the standard differs from that of the judge only in that it cannot be reduced to anything approaching a definite rule.” Id., at 237.
      Judges alone make “in custody” assessments for Miranda purposes, and they do so with a view to identifying recurrent patterns, and advancing uniform outcomes. If they cannot supply “a definite rule,” they nonetheless can reduce the area of uncertainty. See, e. g., Illinois v. Perkins, 496 U. S. 292, 296 (1990) (Miranda warnings not required prior to questioning of incarcerated individual by undercover agent because suspect, unaware of police presence, is not coerced); Berkemer v. McCarty, 468 U. S. 420, 436-439 (1984) (nature of suspected offense is irrelevant to duty to administer Miranda warnings); Oregon v. Mathiason, 429 U. S. 492, 495-496 (1977) (per curiam) (fact that interrogation occurs at police station does not, in itself, require Miranda warnings).

       In other contexts, we have similarly concluded that the likely absence of precedential value cuts against requiring plenary appellate review of a district court’s determination. For example, in Cooter & Gell v. Hartmarx Corp., a decision confirming that the abuse-of-discretion standard applies to appellate review of sanctions under Federal Rule of Civil Procedure 11, we observed that plenary review would likely “ ‘fail to produce the normal law-clarifying benefits that come from an appellate decision on a question of law ....’” 496 U. S., at 404 (quoting Pierce v. Underwood, 487 U. S. 552, 561 (1988)).

       See, e. g., Stansbury v. California, 511 U. S. 318, 322-324 (1994) (per curiam) (review of precedent demonstrated a “well settled” principle: officer’s undisclosed, subjective belief that person questioned is a suspect is irrelevant to objective “in custody” determination); Pennsylvania
        v. Bruder, 488 U. S. 9, 11 (1988) (per curiam) (summary reversal appropriate because state-court decision was contrary to rule of Berkemer v. McCarty, 468 U. S. 420 (1984), that ordinary traffic stops do not involve “custody” for purposes of Miranda).

       The majority believes that federal oversight of state-court custody judgments is necessary to “advanc[e] uniform outcomes,” and when that cannot be achieved, to “reduce the area of uncertainty.” Ante, at 113, n. 13. While uniformity of outcome is a virtue worth pursuing generally, we determined in a line of cases beginning with Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion), that on habeas, uniformity must give way to concerns of comity and finality. See id., at 310 (“The ‘costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus ... generally far outweigh the benefits of this application’ ”) (quoting Solem v. Stumes, 465 U. S. 638, 654 (1984) (Powell, J., concurring in judgment)). Federal habeas review is not the time for fine-tuning constitutional rules of criminal procedure at the expense of valid state convictions based on reasonable applications of then-existing law. See Butler v. McKellar, 494 U. S. 407, 414 (1990) (“The ‘new rule’ principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts”).

       To the extent Thompson’s claim has any merit at all, it seems certain that relief is barred by our decision in Teague v. Lane, supra, at 301, 310 (plurality opinion), and its progeny. “The interests in finality, predictability, and comity underlying our new rule jurisprudence may be undermined to an equal degree by the invocation of a rule that was not dictated by precedent as by the application of an old rule in a manner that was not dictated by precedent.” Stringer v. Black, 503 U. S. 222, 228 (1992). In this case, it is clear that “granting the relief sought would create a new rule because the prior decision is applied in a novel setting, thereby extending the precedent.” Ibid. In light of Beheler and Mathiason, the State’s judgment was, at the very least, reasonable. And “Teague insulates on habeas review the state courts’ ‘ “reasonable, good-faith interpretations of existing precedents.” ’ ” Wright v. West, 505 U. S. 277, 292, n. 8 (1992) (opinion of Thomas, J.) (quoting Sawyer v. Smith, 497 U. S. 227,234 (1990), quoting in turn Butler v. McKellar, supra, at 414).


source: Caselaw Access Project

license: Public Domain

text:
    LOUISIANA v. MISSISSIPPI et al.
    No. 121, Orig.
    Decided October 31, 1995
    Decree entered December 4,1995
   DECREE

This cause having come on to be heard on the Report of the Special Master heretofore appointed by the Court, and the exceptions filed thereto, and having been argued by counsel for the several parties, and this Court having stated its conclusions in its opinion announced on October 31, 1995, ante, p. 22, and having considered the positions of the respective parties as to the terms of the decree, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

1. The boundary between the State of Louisiana and the State of Mississippi along the Mississippi River between North Latitude 32° 49' 25" and North Latitude 32° 44' lies along the line described as follows:

Beginning at Pt. 1 at North Latitude 32° 49' 25" and West Longitude 91° 09' 27"; thence to Pt. 2, Latitude 32° 49' and Longitude 91° 09' 34"; thence to Pt. 3, Latitude 32° 49' 47" and Longitude 91° 09' 37"; thence to Pt. 4, Latitude 32° 48' 30" and Longitude 91° 09' 39"; thence to Pt. 5, Latitude 32° 48' and Longitude 91° 09' 47"; thence to Pt. 6, Latitude 32° 47' 18" and Longitude 91° 09' 51"; thence to Pt. 7, Latitude 32° 47' 6" and Longitude 91° 09' 54"; thence to Pt. 8, Latitude 32° 47' and Longitude 91° 09' 59"; thence to Pt. 9, Latitude 32° 46' 50" and Longitude 91° 10' 7"; thence to Pt. 10, Latitude 32° 46' 35" and Longitude 91° 10' 14"; thence to Pt. 11, Latitude 32° 46' 20" and Longitude 91° 10' 16"; thence to Pt. 12, Latitude 32° 46' and Longitude 91° 10' 18"; thence to Pt. 13, Latitude 32° 45' 45" and Longitude 91° 10' 20"; thence to Pt. 14, Latitude 32° 45' 30" and Longitude 91° 10' 18"; thence to Pt. 15, Latitude 32° 45' 15" and Longitude 91° 10' 12"; thence to Pt. 16, Latitude 32° 45' and Longitude 91° 10' 01"; thence to Pt. 17, Latitude 32° 44' 45" and Longitude 91° 09' 49"; thence to Pt. 18, Latitude 32° 44' 30" and Longitude 91° 09' 38"; thence to Pt. 19, Latitude 32° 44' 23" and Longitude 91° 09' 30"; thence to Pt. 20, Latitude 32° 44' 15" and Longitude 91° 09' 18"; thence to Pt. 21, Latitude 32° 44' 07" and Longitude 91° 09'; thence to Pt. 22, Latitude 32° 44' and Longitude 91° 08' 44".

2. The State of Louisiana’s prayer that the claim of title by defendants Julia Donelson Houston, et al., in and to the lands and water bottoms lying between the Mississippi River on the east and the Louisiana-Mississippi boundary line as fixed in the preceding paragraph on the west be canceled and forever held for naught is DENIED.

3. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.


author:
Justice Thomas Justice Kennedy,
      Justice Ginsburg,

text:
    THINGS REMEMBERED, INC. v. PETRARCA
    No. 94-1530.
    Argued October 2,1995
    Decided December 5, 1995

      Thomas, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Ginsburg, J., joined, post, p. 129. Ginsburg, J., filed a concurring opinion, in which Stevens, J., joined, post, p. 131.

      Steven D. Cundra argued the cause for petitioner. With him on the briefs were Patricia L. Taylor, Dean D Gamin, and Mark A. Gamin.

      John C. Weisensell argued the cause for respondent. With him on the brief were Andrew R. Duff and Jack Morrison, Jr.

        G. Eric Brunstad, Jr., filed a brief for the Connecticut Bar Association, Commercial Law and Bankruptcy Section, as amicus curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

We decide in this case whether a federal court of appeals may review a district court order remanding a bankruptcy case to state court on grounds of untimely removal.

I

Respondent commenced this action in March 1992 by filing a four-count complaint against Child World, Inc., and Cole National Corporation in the Court of Common Pleas in Summit County, Ohio. The state action charged Child World with failure to pay rent under two commercial leases. The complaint also sought to enforce Cole’s guarantee of Child World’s performance under the leases. Petitioner is Cole’s successor in interest.

On May 6,1992, Child World filed a Chapter 11 petition in the United States Bankruptcy Court for the Southern District of New York. On September 25, 1992, petitioner filed notices of removal in both the United States District and Bankruptcy Courts for the Northern District of Ohio. Petitioner based its removal on the bankruptcy removal statute, 28 U. S. C. § 1452(a), as well as the general federal removal statute, 28 U. S. C. § 1441(a). Petitioner also filed a motion in the District Court to transfer venue to the Bankruptcy Court in the Southern District of New York, so that respondent’s guaranty claims could be resolved in the same forum as the underlying lease claims against Child World. Respondent countered by filing motions to remand in the District Court on October 23, 1992, and in the Bankruptcy Court on November 25, 1992.

The District Court consolidated all proceedings in the Bankruptcy Court on March 25, 1993. The Bankruptcy Court held that petitioner’s removal was untimely under 28 U. S. C. § 1452(a) and Federal Rule of Bankruptcy Procedure 9027 but that the action had been timely removed under 28 U. S. C. §§ 1441 and 1446. The court concluded that removal was proper and that it had jurisdiction over the removed case. The court then granted petitioner’s motion to transfer venue to the Bankruptcy Court in the Southern District of New York.

Respondent appealed to the District Court in the Northern District of Ohio. The District Court found removal under both §§ 1441(a) and 1452(a) to be untimely and held that the Bankruptcy Court lacked jurisdiction over the case. The District Court reversed the judgment of the Bankruptcy Court and remanded to that court for further proceedings consistent with the District Court’s opinion.

Petitioner appealed the District Court’s order to the Court of Appeals for the Sixth Circuit. In an unpublished disposition, the Sixth Circuit held that §§ 1447(d) and 1452(b) barred appellate review of the District Court’s remand order. The Court of Appeals then dismissed the appeal for lack of jurisdiction. Judgt. order reported at 65 F. 3d 169 (1994). We granted certiorari, 514 U. S. 1095 (1995), and now affirm.

II

Congress has placed broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court. The general statutory provision governing the reviewability of remand orders is 28 U. S. C. § 1447(d). That section provides:

“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.”

As we explained in Thermtron Products, Inc. v. Hermans-dorfer, 423 U. S. 336 (1976), § 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d). Id., at 345-346. As long as a district court’s remand is based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction — the grounds for remand recognized by § 1447(c) — a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d).

Section 1447(d) bars appellate review of the remand order in this case. As noted, § 1447(d) precludes appellate review of any order “remanding a case to the State court from which it was removed.” The parties do not dispute that the District Court’s order remanded this case to the Ohio state court from which it came. There is also no dispute that the District Court remanded this case on grounds of untimely removal, precisely the type of removal defect contemplated by § 1447(c). Section 1447(d) thus compels the conclusion that the District Court’s order is “not reviewable on appeal or otherwise.” See Gravitt v. Southwestern Bell Telephone Co., 430 U. S. 723 (1977) (per curiam).

We reach the same conclusion regardless of whether removal was effected pursuant to § 1441(a) or § 1452(a). Section 1447(d) applies “not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well.” United States v. Rice, 327 U. S. 742, 752 (1946) (emphasis added). Absent a clear statutory command to the contrary, we assume that Congress is “aware of the universality of th[e] practice” of denying appellate review of remand orders when Congress creates a new ground for removal. Ibid.

There is no express indication in § 1452 that Congress intended that statute to be the exclusive provision governing removals and remands in bankruptcy. Nor is there any reason to infer from § 1447(d) that Congress intended to exclude bankruptcy cases from its coverage. The fact that §1452 contains its own provision governing certain types of remands in bankruptcy, see § 1452(b) (authorizing remand on “any equitable ground” and precluding appellate review of any decision to remand or not to remand on this basis), does not change our conclusion. There is no reason §§ 1447(d) and 1452 cannot comfortably coexist in the bankruptcy context. We must, therefore, give effect to both. Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992).

If an order remands a bankruptcy case to state court because of a timely raised defect in removal procedure or lack of subject-matter jurisdiction, then a court of appeals lacks jurisdiction to review that order under § 1447(d), regardless of whether the case was removed under § 1441(a) or § 1452(a). The remand at issue falls squarely within § 1447(d), and the order is not reviewable on appeal.

The judgment of the Court of Appeals for the Sixth Circuit is affirmed.

It is so ordered.

Justice Kennedy,

with whom Justice Ginsburg joins,

concurring.

I join the Court’s opinion but write to point out that Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336 (1976), has itself been limited by our later decision in Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343 (1988). As I understand the opinion we issue today, our reliance on Thermtron to hold that 28 U. S. C. § 1447(d) prohibits appellate review of this remand pursuant to § 1447(c) (whether or not removal was effected pursuant to § 1441(a) or § 1452(a)) is not intended to bear upon the reviewability of Cohill orders.

In Thermtron, we held that a District Court had exceeded its authority when it remanded a case on grounds not permitted by § 1447(c). 423 U. S., at 345. We further held that the prohibition of appellate review in § 1447(d) does not bar review of orders outside the authority of subsection (c), reasoning that subsections (c) and (d) were to be given a parallel construction. Id., at 345-350. We observed that a remand order other than the orders specified in subsection (c) had “no warrant in the law” and could be reviewed by mandamus. Id., at 353.

In Cohill, supra, we qualified the first holding of Therm-tron. We held that, notwithstanding lack of express statutory authorization, a district court may remand to state court a case in which the sole federal claim had been eliminated and only pendent state-law claims remained. We did not find it necessary to decide whether subsection (d) would bar review of a remand on these grounds, for we affirmed the denial of mandamus by the Court of Appeals. 484 U. S., at 357.

Despite the broad sweep of § 1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” various Courts of Appeals have relied on Thermtron to hold that § 1447(d) bars appellate review of § 1447(c) remands but not remands ordered under Cohill. See, e. g., Bogle v. Phillips Petroleum Co., 24 F. 3d 758, 761 (CA5 1994); In re Prairie Island Dakota Sioux, 21 F. 3d 302, 304 (CA8 1994) (per curiam); Nutter v. Monongahela Power Co., 4 F. 3d 319, 322-323 (CA4 1993) (dicta); In re Glass, Holders, Pottery, Plastics & Allied Workers Int’l Union, Local No. 173, 983 F. 2d 725, 727 (CA6 1993); Rothner v. Chicago, 879 F. 2d 1402, 1406 (CA7 1989); cf. In re Amoco Petroleum Additives Co., 964 F. 2d 706, 708 (CA7 1992) (“Thermtron holds that § 1447(d) does not mean what it says ...”). The issues raised by those decisions are not before us.

Justice Ginsburg,

with whom Justice Stevens joins,

concurring.

Congress, as I read its measures, twice made the remand order here at issue “not reviewable by appeal.” Congress did so first in the prescription generally governing orders “remanding a case to the State court from which it was removed,” 28 U. S. C. § 1447(d); Congress did so again in § 1452(b) when it authorized the remand of claims related to bankruptcy cases “on any equitable ground.”

Section 1452(b) is most sensibly read largely to supplement, and generally not to displace, the rules governing cases removed from state courts set out in 28 U. S. C. § 1447. Section 1447(d) encompassingly prescribes that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, [excepting only orders remanding civil rights cases removed pursuant to 28 U. S. C. § 1443].” The Court persuasively explains why §1452 does not negate the application of § 1447(d) to bankruptcy cases. Accordingly, the Court holds § 1447(d) dis-positive, and I agree with that conclusion. But I am also convinced that § 1452(b) independently warrants the judgment that remand orders in bankruptcy cases are not reviewable. I write separately to state my reasons for that conviction.

Section 1452(b) broadly provides for district court remand of claims related to bankruptcy cases “on any equitable ground,” and declares that the remanding order is “not reviewable by appeal or otherwise.” Congress, when it added § 1452 to the Judicial Code chapter on removal of cases from state courts — a chapter now comprising 28 U. S. C. §§ 1441-1452 — meant to enlarge, not to rein in, federal trial court removal/remand authority for claims related to bankruptcy cases. The drafters, it bears emphasis, expressly contemplated that remand orders for claims related to bankruptcy cases “would not be appealable”; in particular, they reported that bankruptcy forum remands would be unre-viewable “in the same manner that an order of the United States district court remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” H. R. Rep. No. 95-595, p. 51 (1977) (emphasis added).

The lawmakers chose the capacious words “any equitable ground” with no hint whatever that they meant by their word choice to recall premerger distinctions between law and equity, and thereby to render reviewable bankruptcy case remand orders based on “law.” In legal systems that never separated pleadings and procedure along law/equity lines, and not infrequently in our own long-merged system, “equitable” signals that which is reasonable, fair, or appropriate. Dictionary definitions of “equitable” notably include among appropriate meanings: “just and impartial,” American Heritage Dictionary 622 (3d ed. 1992); also “dealing fairly and equally with all concerned,” Webster’s Ninth New Collegiate Dictionary 421 (1983). As Circuit Judge Easterbrook observed:

“[T]he distinction between law and equity was abolished long ago in federal cases. Nothing in the history of the bankruptcy code suggests that Congress wanted to resuscitate it. Courts must separate ‘legal’ from ‘equitable’ grounds in 1789 on command of the seventh amendment. This task has little but the sanction of history to recommend it and is possible only because law versus equity was an intelligible line in the eighteenth century. In 1978, when Congress enacted the predecessor to § 1452, there was no law-equity distinction. ‘Equitable’ in § 1452(b) makes more sense if it means ‘appropriate.’ ” Hernandez v. Brakegate, Ltd., 942 F. 2d 1223, 1226 (CA7 1991).

Cf., e. g., Hilton Davis Chemical Co. v. Warner-Jenkinson Co., 62 F. 3d 1512, 1521 (CA Fed. 1995) (“The term ‘equitable’ can have many meanings. . . . [I]n doctrine of equivalents cases, this court’s allusions to equity invoke equity in its broadest sense — equity as general fairness.”); United States v. BCCI Holdings (Luxembourg), S. A., 46 F. 3d 1185, 1189, 1190 (CADC 1995) (rejecting the argument that Congress used the expression “legal right, title, or interest” in 18 U. S. C. § 1963(0(6)(A) “to draw the ancient, but largely ignored, distinction between technically legal and technically equitable claims in forfeiture challenges”) (emphasis in original).

It seems to me entirely appropriate — and, in that sense, equitable — to remand a case for failure promptly to remove. Indeed, counsel for petitioner recognized the potential for manipulation inherent in his proffered distinction between statutory time limits (“legal” limits) on the one hand and, on the other, court-made determinations that a procedural move is untimely because pursued without due expedition (“equitable” assessments). At oral argument, the following exchange occurred:

“QUESTION: Suppose the judge in this case said, I’m not 100 percent sure about strict time limit, but I think you should have come here sooner, so for equitable reasons I’m remanding this because I think you dawdled— an equitable notion like laches . . . — that would not be reviewable, right?
“MR. CUNDRA: That is correct.
“QUESTION: So it’s the judge’s label, what he wants to put on it. He can make it immune from review if he says, laches.
“MR. CUNDRA: Yes.
“QUESTION: But it’s reviewable if he says, time bar under the statute.
“MR. CUNDRA: Yes.” Tr. of Oral Arg. 15-16.

As Circuit Judge Gee remarked in relation to this very issue, it “make[s] little sense” to rest reviewability vel non on the tag the trial court elects to place on its ruling. Sykes v. Texas Air Corp., 834 F. 2d 488, 492 (CA5 1987).

Interpreting § 1452(b) as fully in sync with § 1447(d) on the nonreviewability of remand orders, we stress, secures the uniform treatment of all remands, regardless of the party initiating the removal or the court from which the case is removed. Cf. Pacor, Inc. v. Higgins, 743 F. 2d 984, 991-992 (CA3 1984) (refusing to apply § 1447(d) in bankruptcy cases because, inter alia, removals under §§ 1441-1447 may be initiated only by defendants and are from state courts only, while § 1452 authorizes removals by “a party” and applies to cases originally filed in federal as well as state tribunals). A restrictive definition of what is “equitable” could invite wasteful controversy over the reviewability of bankruptcy case remand orders that are not reached by § 1447 and rest on grounds a common-law pleader might type “legal.” It would show little respect for the legislature were courts to suppose that the lawmakers meant to enact an irrational scheme. Cf. John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86, 94-95 (1993) (Court’s examination of statutory language is “guided not by a single sentence or member of a sentence, but look[s] to the provisions of the whole law, and to its object and policy.”) (internal quotation marks omitted) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987)); Deal v. United States, 508 U. S. 129, 132 (1993) (It is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”).

Moreover, even if jurisdictional and procedural defects were excluded from the “equitable ground” category, that would not force a construction of § 1452(b) calling for different results depending on the party initiating the removal or the court from which a claim is removed. The phrase “any equitable ground” in § 1452(b) sensibly can be read to relate not to the basis for the district court’s refusal to entertain a case (as my discussion up to now has assumed), but rather to the basis for remanding. Ordinarily, a district court unable to hear a claim, because of lack of jurisdiction or some other legal hindrance, has no choice but to dismiss. Section 1452(b), under the construction advanced in this paragraph, provides an alternative to dismissal (as well as an alternative to proceeding with the case though all the legal requirements are met), by authorizing remands as fairness warrants, i. e., when a remand would be “equitable.”

In sum, a “strong congressional policy against review of remand orders,” Sykes, 834 F. 2d, at 490, underlies §§ 1447(d) and 1452(b). Courts serve the legislature’s purpose best by reading § 1452(b) to make sense and avoid nonsense, and to fit harmoniously within a set of provisions composing a coherent chapter of the Judicial Procedure part of the United States Code. Cf. United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (statutory term “that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme,” for example, when “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”) (citations omitted). Thus the Sixth Circuit, I conclude, correctly ruled that neither § 1452(b) nor § 1447(d) permits the assertion of appellate jurisdiction in this case.

       Section 1452 provides:
      “(a) A party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
      “(b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals ... or by the Supreme Court...

       The District Court’s order left the Bankruptcy Court with no option but to remand the case to state court. The parties and the Court of Appeals for the Sixth Circuit are in agreement that the District Court’s order in this case was equivalent to a remand to state court.

       Section 1447(c) requires that a motion to remand for a defect in removal procedure be filed within 30 days of removal. Petitioner removed this case to federal court on September 25, 1992. Respondent filed motions to remand in the District Court on October 23, 1992, and in the Bankruptcy Court on November 25, 1992. Respondent’s motion to remand filed in the District Court was sufficient to bring this case within the coverage of § 1447(c).

        Rice interpreted the predecessor statute to § 1447(d). The current version of § 1447(d) is a recodification of the provision reviewed in Rice and is “intended to restate the prior law with respect to remand orders and their reviewability.” Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 349-350 (1976).

       This ease concerns, and I address in this opinion, only orders remanding claims “related to” bankruptcy cases. Section 1452(b) also encompasses decisions “to not remand” claims related to bankruptcy cases. The § 1452(b) coverage of decisions “to not remand” resembles a prescription in 28 U. S. C. § 1334, the root jurisdictional provision governing “Bankruptcy cases and proceedings.” Section 1334(c)(2) renders unreviewable district court decisions “to abstain or not to abstain” from adjudi-eating state-law claims merely “related to” a bankruptcy case, i. e., claims that do not independently qualify for federal-court jurisdiction.
      Of course, every federal court, whether trial or appellate, is obliged to notice want of subject-matter jurisdiction on its own motion. See, e. g., Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884). An interlocutory decision “to not remand,” therefore, although not per se reviewable, would leave open for eventual appellate consideration — also and earlier for district court reconsideration — any question of the court’s subject-matter jurisdiction. See, e. g., Sykes v. Texas Air Corp., 834 F. 2d 488, 492, n. 16 (CA5 1987) (“When the district court decides to retain a case in the face of arguments that it lacks jurisdiction, the decision itself is technically unreviewable; but of course the appellate court reviewing any other aspect of the case must remand for dismissal if the refusal to remand was wrong, i. e., if there is no federal jurisdiction over the case.”) (emphasis in original).

       After the Court held inconsonant with Article III the Bankruptcy Act’s broad grant of jurisdiction to bankruptcy judges, see Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 87 (1982), Congress transferred supervisory jurisdiction over bankruptcy cases to Article III courts and retained for the district courts the broad removal/remand authority the Act initially gave to bankruptcy courts. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, 98 Stat. 333


author: Justice O’Connor

text:
    BAILEY v. UNITED STATES
    Ño. 94-7448.
    Argued October 30,1995
    Decided December 6, 1995

      O’Connor, J., delivered the opinion for a unanimous Court.

      Alan E. Untereiner argued the cause for petitioners in both cases. With him on the briefs were David B. Smith and Roy T. Englert, Jr.

      Deputy Solicitor General Dreeben argued the cause for the United States in both cases. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, James A. Feldman, and John F. De Pue.

      Together with No. 94-7492, Robinson v. United States, also on certiorari to the same court.

        Edward H. Sisson and Daniel A. Rezneck filed a brief for James Doe as amicus curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

These consolidated petitions each challenge a conviction under 18 U. S. C. § 924(c)(1). In relevant part, that section imposes a 5-year minimum term of imprisonment upon a person who “during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm.” We are asked to decide whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone sufficient to support a conviction for “use” of a firearm during and in relation to a drug trafficking offense under 18 U. S. C. § 924(c)(1).

I

In May 1989, petitioner Roland Bailey was stopped by police officers after they noticed that his car lacked a front license plate and an inspection sticker. When Bailey failed to produce a driver’s license, the officers ordered him out of the car. As he stepped out, the officers saw Bailey push something between the seat and the front console. A search of the passenger compartment revealed oné round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine. After arresting Bailey, the officers searched the trunk of his car where they found, among a number of items, a large amount of cash and a bag containing a loaded 9-mm. pistol.

Bailey was charged on several counts, including using and carrying a firearm in violation of 18 U. S. C. § 924(c)(1). A prosecution expert testified at trial that drug dealers frequently carry a firearm to protect their drugs and money as well as themselves. Bailey was convicted by the jury on all charges, and his sentence included a consecutive 60-month term of imprisonment on the § 924(c)(1) conviction.

The Court of Appeals for the District of Columbia Circuit rejected Bailey’s claim that the evidence was insufficient to support his conviction under § 924(c)(1). United States v. Bailey, 995 F. 2d 1113 (CADC 1993). The court held that Bailey could be convicted for “using” a firearm during and in relation to a drug trafficking crime if the jury could reasonably infer that the gun facilitated Bailey’s commission of a drug offense. Id., at 1119. In Bailey’s case, the court explained, the trier of fact could reasonably infer that Bailey had used the gun in the trunk to protect his drugs and drug proceeds and to facilitate sales. Judge Douglas H. Ginsburg, dissenting in part, argued that prior Circuit precedent required reversal of Bailey’s conviction.

In June 1991, an undercover officer made a controlled buy of crack cocaine from petitioner Candisha Robinson. The officer observed Robinson retrieve the drugs from the bedroom of her one-bedroom apartment. After a second controlled buy, the police executed a search warrant of the apartment. Inside a locked trunk in the bedroom closet, the police found, among other things, an unloaded, holstered .22-caliber Derringer, papers and a tax return belonging to Robinson, 10.88 grams of crack cocaine, and a marked $20 bill from the first controlled buy.

Robinson was indicted on a number of counts, including using or carrying a firearm in violation of § 924(c)(1). A prosecution expert testified that the Derringer was a “second gun,” i. e., a type of gun a drug dealer might hide on his or her person for use until reaching a “real gun.” The expert also testified that drug dealers generally use guns to protect themselves from other dealers, the police, and their own employees. Robinson was convicted on all counts, including the § 924(c)(1) count, for which she received a 60-month term of imprisonment. The District Court denied Robinson’s motion for a judgment of acquittal with respect to the “using or carrying” conviction and ruled that the evidence was sufficient to establish a violation of § 924(c)(1).

A divided panel of the Court of Appeals reversed Robinson’s conviction on the § 924(c)(1) count. United States v. Robinson, 997 F. 2d 884 (CADC 1993). The court determined, “[g]iven the way section 924(c)(1) is drafted, even if an individual intends to use a firearm in connection with a drug trafficking offense, the conduct of that individual is not reached by the statute unless the individual actually uses the firearm for that purpose.” Id., at 887. The court held that Robinson’s possession of an unloaded .22-caliber Derringer in a locked trunk in a bedroom closet fell significantly short of the type of evidence the court had previously held necessary to establish actual use under § 924(c)(1). The mere proximity of the gun to the drugs was held insufficient to support the conviction. Judge Henderson dissented, arguing, among other things, that the firearm facilitated Robinson’s distribution of drugs because it protected Robinson and the drugs during sales.

In order to resolve the apparent inconsistencies in its decisions applying § 924(c)(1), the Court of Appeals for the District of Columbia Circuit consolidated the two cases and reheard them en banc. In a divided opinion, a majority of the court held that the evidence was sufficient to establish that each defendant had used a firearm in relation to a drug trafficking offense and affirmed the § 924(c)(1) conviction in each case. 36 F. 3d 106 (CADC 1994) (en banc).

The majority rejected a multifactor weighing approach to determine sufficiency of the evidence to support a § 924(c)(1) conviction. The District of Columbia Circuit had previously applied a nonexclusive set of factors, including: accessibility of the gun, its proximity to drugs, whether or not it was loaded, what type of weapon was involved, and whether expert testimony supported the Government’s theory of “use.” The majority explained that this approach invited the reviewing court to reweigh the evidence and make its own finding with respect to an ultimate fact, a function properly left to the jury; had produced widely divergent and contradictory results; and was out of step with the broader definition of “use” employed by other Circuits.

The court replaced the multifactor test with an “accessibility and proximity” test. “[W]e hold that one uses a gun, i. e., avails oneself of a gun, and therefore violates [§ 924(c)(1)], whenever one puts or keeps the gun in a particular place from which one (or one’s agent) can gain access to it if and when needed to facilitate a drug crime.” Id., at 115. The court applied this new standard and affirmed the convictions of both Bailey and Robinson. In both cases, the court determined that the gun was sufficiently accessible and proximate to the drugs or drug proceeds that the jury could properly infer that the defendant had placed the gun in order to further the drug offenses or to protect the possession of the drugs.

Judge Wald, in dissent, argued that the court’s previous multifactor test provided a better standard for appellate review of § 924(e)(1) convictions. Judge Williams, joined by Judges Silberman and Buckley, also dissented. He explained his understanding that “use” under § 924(c)(1) denoted active employment of the firearm “rather than possession with a contingent intent to use.” Id., at 121. “[B]y articulating a ‘proximity’ plus ‘accessibility’ test, however, the court has in effect diluted ‘use’ to mean simply possession with a floating intent to use.” Ibid.

As the debate within the District of Columbia Circuit illustrates, § 924(c)(1) has been the source of much perplexity in the courts. The Circuits are in conflict both in the standards they have articulated, compare United States v. Torres-Rodriguez, 930 P. 2d 1375,1385 (CA9 1991) (mere possession sufficient to satisfy § 924(c)), with United States v. Castro-Lara, 970 F. 2d 976, 983 (CA1 1992) (mere possession insufficient), cert. denied sub nom. Sarraff v. United States, 508 U. S. 962 (1993); and in the results they have reached, compare United States v. Feliz-Cordero, 859 F. 2d 250, 254 (CA2 1988) (presence of gun in dresser drawer in apartment with drugs, drug proceeds, and paraphernalia insufficient to meet § 924(c)(1)), with United States v. McFadden, 13 F. 3d 463, 465 (CA1 1994) (evidence of gun hidden under mattress with money, near drugs, was sufficient to show “use”), and United States v. Hager, 969 F. 2d 883, 889 (CA10) (gun in boots in living room near drugs was “used”), cert. denied, 506- U. S. 964 (1992). We granted certiorari to clarify the meaning of “use” under § 924(c)(1). 514 U. S. 1062 (1995).

II

Section 924(c)(1) requires the imposition of specified penalties if the defendant, “during and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm.” Petitioners argue that “use” signifies active employment of a firearm. The Government opposes that definition and defends the proximity and accessibility test adopted by the Court of Appeals. We agree with petitioners, and hold that § 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.

This action is not the first one in which the Court has grappled with the proper understanding of “use” in § 924(c)(1). In Smith, we faced the question whether the barter of a gun for drugs was a “use,” and concluded that it was. Smith v. United States, 508 U. S. 223 (1993). As the debate in Smith illustrated, the word “use” poses some interpretational difficulties because of the different meanings attributable to it. Consider the paradoxical statement: “I use a gun to protect my house, but I’ve never had to use it.” “Use” draws meaning from its context, and we will look not only to the word itself, but also to the statute and the sentencing scheme, to determine the meaning Congress intended.

We agree with the majority below that “use” must connote more than mere possession of a firearm by a person who commits a drug offense. See 36 F. 3d, at 109; accord, United States v. Castro-Lara, supra, at 983; United States v. Theodoropoulos, 866 F. 2d 587, 597-598 (CA3 1989); United States v. Wilson, 884 F. 2d 174, 177 (CA5 1989). Had Congress intended possession alone to trigger liability under § 924(c)(1), it easily could have so provided. This obvious conclusion is supported by the frequent use of the term “possess” in the gun-crime statutes to describe prohibited gun-related conduct. See, e. g., §§ 922(g), 922(j), 922(k), 922(c)(1), 930(a), 930(b).

Where the Court of Appeals erred was not in its conclusion that “use” means more than mere possession, but in its standard for evaluating whether the involvement of a firearm amounted to something more than mere possession. Its proximity and accessibility standard provides almost no limitation on the kind of possession that would be criminalized; in practice, nearly every possession of a firearm by a person engaged in drug trafficking would satisfy the standard, “thereby erasing] the line that the statutes, and the courts, have tried to draw.” United States v. McFadden, supra, at 469 (Breyer, C. J., dissenting). Rather than requiring actual use, the District of Columbia Circuit would criminalize “simple] possession with a floating intent to use.” 36 F. 3d, at 121 (Williams, J., dissenting). The shortcomings of this test are succinctly explained in Judge Williams’ dissent:

“While the majority attempts to fine-tune the concept of facilitation (and thereby, use) through its twin guideposts of proximity and accessibility, the ultimate result is that possession amounts to ‘use’ because possession enhances the defendant’s confidence. Had Congress intended that, all it need have mentioned is possession. In this regard, the majority’s test is either so broad as to assure automatic affirmance of any jury conviction or, if not so broad, is unlikely to produce a clear guideline.” Id., at 124-125 (citations omitted).

An evidentiary standard for finding “use” that is satisfied in almost every case by evidence of mere possession does not adhere to the obvious congressional intent to require more than possession to trigger the statute’s application.

This conclusion — that a conviction for “use” of a firearm under § 924(c)(1) requires more than a showing of mere possession — requires us to answer a more difficult question. What must the Government show, beyond mere possession, to establish “use” for the purposes of the statute? We conclude that the language, context, and history of § 924(c)(1) indicate that the Government must show active employment of the firearm.

We start, as we must, with the language of the statute. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989). The word “use” in the statute must be given its “ordinary or natural” meaning, a meaning variously defined as “[t]o convert to one’s service,” “to employ,” “to avail oneself of,” and “to carry out a purpose or action by means of.” Smith, supra, at 228-229 (internal quotation marks omitted) (citing Webster’s New International Dictionary of English Language 2806 (2d ed. 1949) and Black’s Law Dictionary 1541 (6th ed. 1990)). These various definitions of “use” imply action and implementation. See also McFadden, 13 F. 3d, at 467 (Breyer, C. J., dissenting) (“[T]he ordinary meanings of the words ‘use and ‘carry’ . . . connote activity beyond simple possession”).

We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. “ ‘[T]he meaning of statutory language, plain or not, depends on context.’” Brown v. Gardner, 513 U. S. 115, 118 (1994) (citing King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991)). Looking past the word “use” itself, we read § 924(c)(1) with the assumption that Congress intended each of its terms to have meaning. “Judges should hesitate . . . to treat [as surplusage] statutory terms in any setting, and resistance should be heightened when the words describe an element of a criminal offense.” Ratzlaf v. United States, 510 U. S. 135, 140-141 (1994). Here, Congress has specified two types of conduct with a firearm: “uses” or “carries.”

Under the Government’s reading of § 924(c)(1), “use” includes even the action of a defendant who puts a gun into place to protect drugs or to embolden himself. This reading is of such breadth that no role remains for “carry.” The Government admits that the meanings of “use” and “carry” converge under its interpretation, but maintains that this overlap is a product of the particular history of § 924(c)(1). Therefore, the Government argues, the canon of construction that instructs that “a legislature is presumed to have used no superfluous words,” Platt v. Union Pacific R. Co., 99 U. S. 48, 58 (1879), is inapplicable. Brief for United States 24-25. We disagree. Nothing here indicates that Congress, when it provided these two terms, intended that they be understood to be redundant.

We assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning. While a broad reading of “use” undermines virtually any function for “carry,” a more limited, active interpretation of “use” preserves a meaningful role for “carries” as an alternative basis for a charge. Under the interpretation we enunciate today, a firearm can be used without being carried, e. g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e. g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.

This reading receives further support from the context of § 924(c)(1). As we observed in Smith, “using a firearm” should not have a “different meaning in § 924(c)(1) than it does in § 924(d).” 508 U. S., at 235. See also United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme”). Section 924(d)(1) provides for the forfeiture of any firearm that is “used” or “intended to be used” in certain crimes. In that provision, Congress recognized a distinction between firearms “used” in commission of a crime and those “intended to be used,” and provided for forfeiture of a weapon even before it had been “used.” In § 924(c)(1), however, liability attaches only to cases of actual use, not intended use, as when an offender places a firearm with the intent to use it later if necessary. The difference between the two provisions demonstrates that, had Congress meant to broaden application of the statute beyond actual “use,” Congress could and would have so specified, as it did in § 924(d)(1).

The amendment history of § 924(c) casts further light on Congress’ intended meaning. The original version, passed in 1968, read:

“(c) Whoever—
“(1) uses a firearm to commit any felony which may be prosecuted in a court of the United States, or
“(2) carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States,
“shall be sentenced to a term of imprisonment for not less than one year nor more than 10 years.” § 102, 82 Stat. 1224.

The phrase “uses a firearm to commit” indicates that Congress originally intended to reach the situation where the firearm was actively employed during commission of the crime. This original language would not have stretched so far as to cover a firearm that played no detectable role in the crime’s commission. For example, a defendant who stored a gun in a nearby closet for retrieval in case the deal went sour would not have “use[d] a firearm to commit” a crime. This version also shows that “use” and “carry” were employed with distinctly different meanings.

Congress’ 1984 amendment to § 924(c) altered the scope of predicate offenses from “any felony” to “any crime of violence,” removed the “unlawfully” requirement, merged the “uses” and “carries” prongs, substituted “during and in relation to” the predicate crimes for the earlier provisions linking the firearm to the predicate crimes, and raised the minimum sentence to five years. § 1005(a), 98 Stat. 2138-2139. The Government argues that this amendment stripped “uses” and “carries” of the qualifications (“to commit” and “unlawfully during”) that originally gave them distinct meanings, so that the terms should now be understood to overlap. Of course, in Smith we recognized that Congress’ subsequent amendments to § 924(c) employed “use” expansively, to cover both use as a weapon and use as an item of barter. See Smith, 508 U. S., at 236. But there is no evidence to indicate that Congress intended to expand the meaning of “use” so far as to swallow up any significance for “carry.” If Congress had intended to deprive “use” of its active connotations, it could have simply substituted a more appropriate term — “possession”—to cover the conduct it wished to reach.

The Government nonetheless argues that our observation in Smith that “§ 924(c)(l)’s language sweeps broadly,” 508 U. S., at 229, precludes limiting “use” to active employment. But our decision today is not inconsistent with Smith. Although there we declined to limit “use” to the meaning “use as a weapon,” our interpretation of § 924(c)(1) nonetheless adhered to an active meaning of the term. In Smith, it was clear that the defendant had “used” the gun; the question was whether that particular use (bartering) came within the meaning of § 924(c)(1). Smith did not address the question we face today of what evidence is required to permit a jury to find that a firearm had been used at all.

To illustrate the activities that fall within the definition of “use” provided here, we briefly describe some of the activities that fall within “active employment” of a firearm, and those that do not.

The active-employment understanding of “use” certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender’s reference to a firearm in his possession could satisfy § 924(c)(1). Thus, a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a “use,” just as the silent but obvious and forceful presence of a gun on a table can be a “use.”

The example given above — “I use a gun to protect my house, but I’ve never had to use it” — shows that “use” takes on different meanings depending on context. In the first phrase of the example, “use” refers to an ongoing, inactive function fulfilled by a firearm. It is this sense of “use” that underlies the Government’s contention that “placement for protection” — i. e., placement of a firearm to provide a sense of security or to embolden — constitutes a “use.” It follows, according to this argument, that a gun placed in a closet is “used,” because its mere presence emboldens or protects its owner. We disagree. Under this reading, mere possession of a firearm by a drug offender, at or near the site of a drug crime or its proceeds or paraphernalia, is a “use” by the offender, because its availability for intimidation, attack, or defense would always, presumably, embolden or comfort the offender. But the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1). Perhaps the nonactive nature of this asserted “use” is clearer if a synonym is used: storage. A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession.

A possibly more difficult question arises where an offender conceals a gun nearby to be at the ready for an imminent confrontation. Cf. 36 P. 3d, at 119 (Wald, J., dissenting) (discussing distinction between firearm’s accessibility to drugs or drug proceeds and its accessibility to defendant). Some might argue that the offender has “actively employed” the gun by hiding it where he can grab and use it if necessary. In our view, “use” cannot extend to encompass this action. If the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not “used.” To conclude otherwise would distort the language of the statute as well as create an impossible line-drawing problem. How “at the ready” was the firearm? Within arm’s reach? In the room? In the house? How long before the confrontation did he place it there? Five minutes or 24 hours? Placement for later active use does not constitute “use.” An alternative rationale for why “placement at the ready” is a “use”— that such placement is made with the intent to put the firearm to a future active use — also fails. As discussed above, § 924(d)(1) demonstrates that Congress knew how to draft a statute to reach a firearm that was “intended to be used.” In § 924(c)(1), it chose not to include that term, but instead established the 5-year mandatory minimum only for those defendants who actually “use” the firearm.

While it is undeniable that the active-employment reading of “use” restricts the scope of § 924(c)(1), the Government often has other means available to charge offenders who mix guns and drugs. The “carry” prong of § 924(c)(1), for example, brings some offenders who would not satisfy the “use” prong within the reach of the statute. And Sentencing Guidelines §2D1.1(b)(1) provides an enhancement for a person convicted of certain drug-trafficking offenses if a firearm was possessed during the offense. United States Sentencing Commission, Guidelines Manual §2D1.1(b)(1) (Nov. 1994). But the word “use” in § 924(c)(1) cannot support the extended applications that prosecutors have sometimes placed on it, in order to penalize drug-trafficking offenders for firearms possession.

The test set forth by the Court of Appeals renders “use” virtually synonymous with “possession” and makes any role for “carry” superfluous. The language of § 924(c)(1), supported by its history and context, compels the conclusion that Congress intended “use” in the active sense of “to avail oneself of.” To sustain a conviction under the “use” prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.

Ill

Having determined that “use” denotes active employment, we must conclude that the evidence was insufficient to support either Bailey’s or Robinson’s conviction for “use” under § 924(c)(1).

The police stopped Bailey for a traffic offense and arrested him after finding cocaine in the driver’s compartment of his car. The police then found a firearm inside a bag in the locked car trunk. There was no evidence that Bailey actively employed the firearm in any way. In Robinson’s case, the unloaded, holstered firearm that provided the basis for her § 924(c)(1) conviction was found locked in a footlocker in a bedroom closet. No evidence showed that Robinson had actively employed the firearm. We reverse both judgments.

Bailey and Robinson were each charged under both the “use” and “carry” prongs of § 924(c)(1). Because the Court of Appeals did not consider liability under the “carry” prong of § 924(c)(1) for Bailey or Robinson, we remand for consideration of that basis for upholding the convictions.

It is so ordered.