source: Caselaw Access Project

author: Justice Stevens Justice Souter, Justice Ginsburg,

license: Public Domain

text:
    ILLINOIS v. CABALLES
    No. 03-923.
    Argued November 10, 2004
    Decided January 24, 2005
    Stevens, J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion, post, p. 410. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 417. Rehnquist, C. J., took no part in the decision of the case.

      Lisa Madigan, Attorney General of Illinois, argued the cause for petitioner. With her on the briefs were Gary Feinerman, Solicitor General, and Linda D. Woloshin and Mary Fleming, Assistant Attorneys General.

      Assistant Attorney General Wray argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Olson, Deputy Solicitor General Dreeben, James A. Feldman, and John A. Drennan.

      Ralph E. Meczyk argued the cause for respondent. With him on the brief was Lawrence H. Hyman

      Briefs of amici curiae urging reversal were filed for the State of Arkansas et al. by Mike Beebe, Attorney General of Arkansas, Lauren Elizabeth Heil, Assistant Attorney General, and Dan Schweitzer,- and by the Attorneys General for their respective States as follows:. Troy King of Alabama, Terry Goddard of Arizona, Christopher L. Morano of Connecticut, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Phill Kline of Kansas, Charles C. Foti of Louisiana, G. Steven Rowe of Maine, J Joseph Curran, Jr., of Maryland, Michael A Cox of Michigan, Jon Bruning of Nebraska, Peter C. Harvey of New Jersey, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Hardy Myers of Oregon, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry Kilgore of Virginia, and Patrick J. Crank of Wyoming; and for the Illinois Association of Chiefs of Police et al. by James G. Sotos.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Barry Sullivan, Jacob I. Corré, Steven R. Shapiro, and Harvey Grossman; and for the National Association of Criminal Defense Lawyers by Jeffrey T. Green, John Wesley Hall, Jr., and David M. Siegel.

   Justice Stevens

delivered the opinion of the Court.

Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s ear was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.

Respondent was convicted of a narcotics offense and sentenced to 12 years’ imprisonment and a $256,136 fine. The trial judge denied his motion to suppress the seized evidence and to quash his arrest. He held that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct the search. Although the Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the canine sniff was performed without any “‘specific and articulable facts’ ” to suggest drug activity, the use of the dog “unjustifiably enlarged] the scope of a routine traffic stop into a drug investigation.” 207 Ill. 2d 504, 510, 802 N. E. 2d 202, 205 (2003).

The question on which we granted certiorari, 541 U. S. 972 (2004), is narrow: “Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” Pet. for Cert. i. Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.

Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause and was coneededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U. S. 109, 124 (1984). A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while; respondent was being unlawfully detained.

In the state-court proceedings, however, the judges carefully reviewed the details of Officer Gillette’s conversations with respondent and the precise timing of his radio transmissions to the dispatcher to determine whether he had improperly extended the duration of the stop to enable the dog sniff to occur. We have not recounted those details because we accept the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.

Despite this conclusion, the Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent’s stopped car. That is, the court characterized the dog sniff as the cause rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.

Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. Jacobsen, 466 U. S., at 123. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.” Id., at 122 (punctuation omitted). In United States v. Place, 462 U. S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as “sui generis” because it “discloses only the presence or absence of narcotics, a contraband item.” Id., at 707; see also Indianapolis v. Edmond, 531 U. S. 32, 40 (2000). Respondent likewise concedes that “drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband.” Brief for Respondent 17. Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

Accordingly, the use of a well-trained narcotics-detection dog — one that “does not expose noncontraband items that otherwise would remain hidden from public view,” Place, 462 U. S., at 707 — during a lawful traffic stop generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity — in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

. It is so ordered.

The Chief Justice took no part in the decision of this case.

Justice Souter,

dissenting.

I would hold that using the dog for the purposes of determining the presence of marijuana in the car’s trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. I would accordingly affirm the judgment of the Supreme Court of Illinois, and I respectfully dissent.

In United States v. Place, 462 U. S. 696 (1983), we categorized the sniff of the narcotics-seeking dog as “sui generis" under the Fourth Amendment and held it was not a search. Id., at 707. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err. What we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering Place’s decision against treating the intentional use of a trained dog as a search. The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth. Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search. We should not wait for these developments to occur before rethinking Place’s analysis, which invites such untoward consequences.

At the heart both of Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. See ibid. (“[T]he sniff discloses only the presence or absence of narcotics, a contraband item”); ante, at 409 (assuming that “a canine sniff by a well-trained narcotics-detection dog” will only reveal “ ‘the presence or absence of narcotics, a contraband item’ ” (quoting Place, supra, at 707)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff “does not implicate legitimate privacy interests” and is not to be treated as a search. Ante, at 409.

The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. See, e. g., United States v. Kennedy, 131 F. 3d 1371, 1378 (CA10 1997) (describing a dog that had a 71% accuracy rate); United States v. Scarborough, 128 F. 3d 1373, 1378, n. 3 (CA10 1997) (describing a dog that erroneously alerted 4 times out of 19 while working for the postal service and 8% of the time over its entire career); United States v. Limares, 269 F. 3d 794, 797 (CA7 2001) (accepting as reliable a dog that gave false positives between 7% and 38% of the time); Laime v. State, 347 Ark. 142, 159, 60 S. W. 3d 464, 476 (2001) (speaking of a dog that made between 10 and 50 errors); United States v. $242,484.00, 351 F. 3d 499, 511 (CA11 2003) (noting that because as much as 80% of all currency in circulation contains drug residue, a dog alert "is of little value”), vacated on other grounds by rehearing en banc, 357 F. 3d 1225 (CA11 2004); United States v. Carr, 25 F. 3d 1194, 1214-1217 (CA3 1994) (Becker, J., concurring in part and dissenting in part) (“[A] substantial portion of United States currency ... is tainted with sufficient traces of controlled substances to cause a trained canine to alert to their presence”). Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are' “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5% to 60% of the time, depending on the length of the search. See Reply Brief for Petitioner 13; Federal Aviation Admin., K. Garner et al., Duty Cycle of the Detector Dog: A Baseline Study 12 (Apr. 2001) (prepared by Auburn U. Inst, for Biological Detection Systems). In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.

Once the dog’s fallibility is recognized, however, that ends the justification claimed in Place for treating the sniff as sui generis under the Fourth Amendment: the sniff alert does not necessarily signal hidden contraband, and opening the container or enclosed space whose emanations the dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not, of course, to deny that a dog’s reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty thát Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny. And when that aura of uniqueness disappears, there is no basis in Place’s reasoning, and no good reason otherwise, to ignore the actual function that dog sniffs perform. They are conducted to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but will disclose anything meant to be kept private in the area searched. Thus in practice the government’s use of a trained narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures, to be used to justify á further and complete search of the enclosed area. And given the fallibility of the dog, the sniff is the first step in a process that may disclose “intimate details” without revealing contraband, just as a thermal-imaging device might do, as described in Kyllo v. United States, 533 U. S. 27 (2001).

It makes sense, then, to treat a sniff as the search that it amounts to in practice, and to rely on the body of our Fourth Amendment cases, including Kyllo, in deciding whether such a search is reasonable. As a general proposition, using a dog to sniff for drugs is subject to the rule that the object of enforcing criminal laws does not, without more, justify suspicionless Fourth Amendment intrusions. See Indianapolis v. Edmond, 531 U. S. 32, 41-42 (2000). Since the police claim to have had no particular suspicion that Caballes was violating any drug law, this sniff search must stand or fall on its being ancillary to the traffic stop that led up to it. It is true that the police had probable cause to stop the car for an offense committed in the officer’s presence, which Caballes concedes could have justified his arrest. See Brief for Respondent 31. There is no occasion to consider authority incident to arrest, however, see Knowles v. Iowa, 525 U. S. 113 (1998), for the police did nothing more than detain Caballes long enough to check his record and write a ticket. As a consequence, the reasonableness of the search must be assessed in relation to the actual delay the police chose to impose, and as Justice Ginsburg points out in her opinion, post, at 419-420, the Fourth Amendment consequences of stopping for a traffic citation are settled law.

In Berkemer v. McCarty, 468 U. S. 420, 439-440 (1984), followed in Knowles, supra, at 117, we held that the analogue of the common traffic stop was the limited detention for investigation authorized by Terry v. Ohio, 392 U. S. 1 (1968). While Terry authorized a restricted incidental search for weapons when reasonable suspicion warrants such a safety measure, id., at 25-26, the Court took care to keep a Terry stop from automatically becoming a foot in the door for all investigatory purposes; the permissible intrusion was bounded by the justification for the detention, id., at 29-30. Although facts disclosed by enquiry within this limit might give grounds to go further, the government could not otherwise take advantage of a suspect’s immobility to search for evidence unrelated to the reason for the detention. That has to be the rule unless Terry is going to become an open sesame for general searches, and that rule requires holding that the police do not have reasonable grounds to conduct sniff searches for drugs simply because they have stopped someone to receive a ticket for a highway offense. Since the police had no indication of illegal activity beyond the speed of the car in this case, the sniff search should be held unreasonable under the Fourth Amendment and its fruits should be suppressed.

Nothing in the case relied upon by the Court, United States v. Jacobsen, 466 U. S. 109 (1984), unsettled the limit of reasonable enquiry adopted in Terry. In Jacobsen, the Court found that no Fourth Amendment search occurred when federal agents analyzed powder they had already lawfully obtained. The Court noted that because the test could only reveal whether the powder was cocaine, the owner had no legitimate privacy interest at stake. 466 U. S., at 123. As already explained, however, the use of a sniffing dog in cases like this is significantly different and properly treated as a search that does indeed implicate Fourth Amendment protection.

In JacobSen, once the powder was analyzed, that was effectively the end of the matter: either the powder was cocaine, a fact the owner had no legitimate interest in concealing, or it was not cocaine, in which case the test revealed nothing about the powder or anything else that was not already legitimately obvious to the police. But in the case of the dog sniff, the dog does not smell the disclosed contraband; it smells a closed container. An affirmative reaction therefore does not identify a substance the police already legitimately possess, but informs the police instead merely of a reasonable chance of finding contraband they have yet to put their hands on. The police will then open the container and discover whatever lies within, be it marijuana or the owner’s private papers. Thus, while Jacobsen could rely on the assumption that the enquiry in question would either show with certainty that a known substance was contraband or would reveal nothing more, both the certainty and the limit on disclosure that may follow are missing when the dog sniffs the car.

The Court today does not go so far as to say explicitly that sniff searches by dogs trained to sense contraband always get a free pass under the Fourth Amendment, since it reserves judgment on the constitutional significance of sniffs assumed to be more intrusive than a dog’s walk around a stopped car, ante, at 409. For this reason, I do not take the Court’s reliance on Jacobsen as actually signaling recognition of a broad authority to conduct suspicionless sniffs for drugs in any parked car, about which Justice Ginsburg is rightly concerned, post, at 422, or on the person 6f any pedestrian minding his own business on a sidewalk. But the Court’s stated reasoning provides no apparent stopping point short of such excesses. For the sake of providing a workable framework to analyze cases on facts like these, which are certain to come along, I would treat the dog sniff as the familiar search it is in fact, subject to scrutiny under the Fourth Amendment.

Justice Ginsburg,

with whom Justice Souter joins,

dissenting.

Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted speed limit of 65 miles per hour. Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic stop. Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff. Gillette informed Caballes that he was speeding and asked for the usual documents — driver’s license, car registration, and proof of insurance. Caballes promptly provided the requested documents but refused to consent to a search of his vehicle. After calling his dispatcher to check on the validity of Caballes’ license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket. Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog. Graham walked the dog around the car, the dog alerted at Caballes’ trunk, and, after opening the trunk, the troopers found marijuana. 207 Ill. 2d 504, 506-507, 802 N. E. 2d 202, 203 (2003).

The Supreme Court of Illinois held that the drug evidence should have been suppressed. Id., at 506, 802 N. E. 2d, at 202. Adhering to its decision in People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002), the court employed a two-part test taken from Terry v. Ohio, 392 U. S. 1 (1968), to determine the overall reasonableness of the stop. 207 Ill. 2d, at 508, 802 N. E. 2d, at 204. The court asked first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Ibid. (quoting People v. Brownlee, 186 Ill. 2d 501, 518-519, 713 N. E. 2d 556, 565 (1999) (in turn quoting Terry, 392 U. S., at 19-20)). “[I]t is undisputed,” the court observed, “that the traffic stop was properly initiated”; thus, the dispositive inquiry trained on the “second part of the Terry test,” in which “[t]he State bears the burden of establishing that the conduct remained within the scope of the stop.” 207 Ill. 2d, at 509, 802 N. E. 2d, at 204.

The court concluded that the State failed to offer sufficient justification for the canine sniff: “The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs.” Ibid. Lacking “specific and articulable facts” supporting the canine sniff, ibid, (quoting Cox, 202 Ill. 2d, at 470-471, 782 N. E. 2d, at 281), the court ruled, “the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation.” 207 Ill. 2d, at 509, 802 N. E. 2d, at 204. I would affirm the Illinois Supreme Court’s judgment and hold that the drug sniff violated the Fourth Amendment.

In Terry v. Ohio, the Court upheld the stop and subsequent frisk of an individual based on an officer’s observation of suspicious behavior and his reasonable belief that the suspect was armed. See 392 U. S., at 27-28. In a Terry-type investigatory stop, “the officer’s action [must be] justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.” Id., at 20. In applying Terry, the Court has several times indicated that the limitation on “scope” is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted. See, e. g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 188 (2004) (an officer’s request that an individual identify himself “has an immediate relation to the purpose, rationale, and practical demands of a Terry stop”); United States v. Hensley, 469 U. S. 221, 235 (1985) (examining, under Terry, both “the length and intrusiveness of the stop and detention”); Florida v. Royer, 460 U. S. 491, 500 (1983) (plurality opinion) (“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion ....”).

“A routine traffic stop,” the Court has observed, “is a relatively brief encounter and ‘is more analogous to a so-called Terry stop .. . than to a formal arrest.’ ” Knowles v. Iowa, 525 U. S. 113, 117 (1998) (quoting Berkemer v. McCarty, 468 U. S. 420, 439 (1984)); see also ante, at 415 (Souter, J., dissenting) (The government may not “take advantage of a suspect’s immobility to search for evidence unrelated to the reason for the detention.”). I would apply Terry’s reasonable-relation test, as the Illinois Supreme Court did, to determine whether the canine sniff impermissibly expanded the scope of the initially valid seizure of Caballes.

It is hardly dispositive that the dog sniff in this case may not have lengthened the duration of the stop. Cf. ante, at 407 (“A seizure . . . can become unlawful if it is prolonged beyond the time reasonably required to complete [the initial] mission.”). Terry, it merits repetition, instructs that any investigation must be “reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U. S., at 20 (emphasis added). The unwarranted and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment.

The Court rejects the Illinois Supreme Court’s judgment and, implicitly, the application of Terry to a traffic stop converted, by calling in a dog, to a drug search. The Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope. Ante, at 408. Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy. Ante, at 408-409.

In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry (was the police action “reasonably related in scope to the circumstances [justifiying] the [initial] interference”). 392 U. S., at 20. A drug-detection dog is an intimidating animal. Cf. United States v. Williams, 356 F. 3d 1268, 1276 (CA10 2004) (McKay, J., dissenting) (“drug dogs are not lap dogs”). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes — who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit — was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment “search,” cf. Indian apolis v. Edmond, 531 U. S. 32, 40 (2000); United States v. Place, 462 U. S. 696, 707 (1983), the sniff surely broadened the scope of the traffic-violation-related seizure.

The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty. See, e. g., United States v. Karo, 468 U. S. 705, 717 (1984) (Fourth Amendment warrant requirement applies to police monitoring of a beeper in a house even if “the facts [justify] believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity.”); see also Minnesota v. Carter, 525 U. S. 83, 110 (1998) (Ginsburg, J., dissenting) (“Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.”). Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.

The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today’s decision, in contrast, clears the way for suspi-cionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Compare, e. g., United States v. Ludwig, 10 F. 3d 1523, 1526-1527 (CA10 1993) (upholding a search based on a canine drug sniff of a parked car in a motel parking lot conducted without particular suspicion), with United States v. Quinn, 815 F. 2d 153, 159 (CA1 1987) (officers must have reasonable suspicion that a car contains narcotics at the moment a dog sniff is performed), and Place, 462 U. S., at 706-707 (Fourth Amendment not violated by a dog sniff of a piece of luggage that was seized, pre-sniff, based on suspicion of drugs). Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.

Today’s decision also undermines this Court’s situation-sensitive balancing of Fourth Amendment interests in other contexts. For example, in Bond v. United States, 529 U. S. 334, 338-339 (2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer’s physical manipulation of the bag constituted an illegal search. If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer’s request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say “No.”

The dog sniff in this case, it bears emphasis, was for drug detection only. A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter. Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes. For example, they may be trained for narcotics detection or for explosives detection or for agricultural products detection. See, e. g., U. S. Customs & Border Protection, Canine Enforcement Training Center Training Program Course Descriptions, http://www.cbp.gov/xp/cgov/border_security/canines/ training_program.xml (all Internet materials as visited Dec. 16, 2004, and available in Clerk of Court’s case file) (describing Customs training courses in narcotics detection); Transportation Security Administration, Canine and Explosives Program, http://www.tsa.gov/public/display7themes32 (describing Transportation Security Administration’s explosives detection canine program); U. S. Dept, of Agriculture, Animal and Plant Health Inspection Service, USDA’s Detector Dogs: Protecting American Agriculture (Oct. 2001), available at http://www.aphis.usda.gov/oa/pubs/detdogs.pdf (describing USD A Beagle Brigade detector dogs trained to detect prohibited fruits, plants, and meat); see also Jennings, Origins and History of Security and Detector Dogs, in Canine Sports Medicine and Surgery 16,18-19 (M. Bloomberg, J. Dee, & R. Taylor eds. 1998) (describing narcotics-detector dogs used by Border Patrol and Customs, and bomb detector dogs used by the Federal Aviation Administration and the Secret Service, but noting the possibility in some circumstances of cross training dogs for multiple tasks); S. Chapman, Police Dogs in North America 64, 70-79 (1990) (describing narcotics- and explosives-detection dogs and noting the possibility of cross training). There is no indication in this case that the dog accompanying Trooper Graham was trained for anything other than drug detection. See 207 Ill. 2d, at 507, 802 N. E. 2d, at 203 (“Trooper Graham arrived with his drug-detection dog . . . .”); Brief for Petitioner 3 (“Trooper Graham arrived with a drug-detection dog ....”).

This Court has distinguished between the general interest in crime control and more immediate threats to public safety. In Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), this Court upheld the use of a sobriety traffic checkpoint. Balancing the State’s interest in preventing drunk driving, the extent to which that could be accomplished through the checkpoint program, and the degree of intrusion the stops involved, the Court determined that the State’s checkpoint program was consistent with the Fourth Amendment. Id., at 455. Ten years after Sitz, in Indianapolis v. Edmond, 531 U. S. 32, this Court held that a drug interdiction checkpoint violated the Fourth Amendment. Despite the illegal narcotics traffic that the Nation is struggling to stem, the Court explained, a “general interest in crime control” did not justify the stops. Id., at 43-44 (internal quotation marks omitted). The Court distinguished the sobriety checkpoints in Sitz on the ground that those checkpoints were designed to eliminate an “immediate, vehicle-bound threat to life and limb.” 531 U. S., at 43.

The use of bomb-detection dogs to check vehicles for explosives without doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond. As the Court observed in Edmond: “[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack . . . 531 U. S., at 44. Even if the Court were to change course and characterize a dog sniff as an independent. Fourth Amendment search, see ante, p. 410 (Souter, J., dissenting), the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine. See, e. g., ante, at 417, n. 7 (Souter, J., dissenting); Griffin v. Wisconsin, 483 U. S. 868, 873 (1987) (permitting exceptions to the warrant and probable-cause requirements for a search when “special needs, beyond the normal need for law enforcement,” make those requirements impracticable (quoting New Jersey v. T. L. O., 469 U. S. 325, 351 (1985) (Blackmun, J., concurring in judgment))).

* * *

For the reasons stated, I would hold that the police violated Caballes’ Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would therefore affirm the judgment of the Illinois Supreme Court.

       I also join Justice Ginsburg’s dissent, post, p. 417. Without directly reexamining the soundness of the Court’s analysis of government dog sniffs in Place, she demonstrates that investigation into a matter beyond the subject of the traffic stop here offends the rule in Terry v. Ohio, 392 U. S. 1 (1968), the analysis I, too, adopt.

       Another proffered justification for sui generis status is that a dog sniff is a particularly nonintrusive procedure. United States v. Place, 462 U. S. 696, 707 (1983). I agree with Justice Ginsburg that the introduction of a dog to a traffic stop (let alone an encounter with someone walking down the street) can in fact be quite intrusive. Post, at 421-422.

        Kyllo was concerned with whether a search occurred when the police used a thermal-imaging device on a house to detect heat emanations associated with high-powered marijuana-growing lamps. In concluding that using the device was a search, the Court stressed that the “Government [may not] us[e] a device ... to explore details of the home that would previously have been unknowable without physical intrusion.” 533 U. S., at 40. Any difference between the dwelling in Kyllo and the trunk of the car here may go to the issue of the reasonableness of the respective searches, but it has no bearing on the question of search or no search. Nor is it significant that Kyllo]s imaging device would disclose personal details immediately, whereas they would be revealed only in the further' step of opening the enclosed space following the dog’s alert reaction; in practical terms the same values protected by the Fourth Amendment are at stake in each ease. The justifications required by the Fourth Amendment may or may not differ as between the two practices, but if constitutional scrutiny is in order for the imager, it is in order for the dog.

       Despite the remarkable fact that the police pulled over a car for going 71 miles an hour on 1-80, the State maintains that excessive speed was the only reason for the stop, and the case comes to us on that assumption.

       Thus, in Place itself, the Government officials had independent grounds to suspect that the luggage in question contained contraband before they employed the dog sniff. 462 U. S., at 698 (describing how Place had acted suspiciously in line at the airport and had labeled his luggage with inconsistent and fictional addresses).

       It would also be error to claim that some variant of the plain-view doctrine excuses the lack of justification for the dog sniff in this case. When an officer observes an object left by its owner in plain view, no search occurs because the owner has exhibited “no intention to keep [the object] to himself.” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). In contrast, when an individual conceals his possessions from the world, he has grounds to expect some degree of privacy. While plain view may be enhanced somewhat by technology, see, e. g., Dow Chemical Co. v. United States, 476 U. S. 227 (1986) (allowing for aerial surveillance of an industrial complex), there are limits. As Kyllo v. United States, 533 U. S. 27, 33 (2001), explained in treating the thermal-imaging device as outside the plain-view doctrine, “[w]e have previously reserved judgment as to how much technological enhancement of ordinary perception” turns mere observation into a Fourth Amendment search. While Kyllo laid special emphasis on the heightened privacy expectations that surround the home, closed car trunks are accorded some level of privacy protection. See, e. g., New York v. Belton, 453 U. S. 454, 460, n. 4 (1981) (holding that even a search incident to arrest in a vehicle does not itself permit a search of the trunk). As a result, if Fourth Amendment protections are to have meaning in the face of superhuman, yet fallible, techniques like the use of trained dogs, those techniques must be justified on the basis of their reasonableness, lest everything be deemed in plain view.

       I should take care myself to reserve judgment about a possible case significantly unlike this one. All of us are concerned not to prejudge a claim of authority to detect explosives and dangerous chemical or biological weapons that might be carried by a terrorist who prompts no individualized suspicion. Suffice it to say here that what is a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a societal risk.

       The Illinois Supreme Court held insufficient to support a canine sniff Gillette’s observations that (1) Caballes said he was moving to Chicago, but his only visible belongings were two sport coats in the backseat; (2) the car smelled of air freshener; (3) Caballes was dressed for business, but was unemployed; and (4) Caballes seemed nervous. Even viewed together, the court said, these observations gave rise to “nothing more than a vague hunch” of “possible wrongdoing.” 207 Ill. 2d 504, 509-510, 802 N. E. 2d 202, 204-205 (2003). This Court proceeds on “the assumption that the officer conducting the dog sniff had no information about [Caballes].” Ante, at 407.

       The Berkemer Court cautioned that by analogizing a traffic stop to a Terry stop, it did “not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” 468 U. S., at 439, n. 29. This Court, however, looked to Terry earlier in deciding that an officer acted reasonably when he ordered a motorist stopped for driving with expired license tags to exit his car, Pennsylvania v. Mimms, 434 U. S. 106, 109-110 (1977) (per curiam), and later reaffirmed the Terry analogy when evaluating a police officer’s authority to search a vehicle during a routine traffic stop, Knowles, 525 U. S., at 117.

       The question whether a police officer inquiring about drugs without reasonable suspicion unconstitutionally broadens a traffic investigation is not before the Court. Cf. Florida v. Bostick, 501 U. S. 429, 434 (1991) (police questioning of a bus passenger, who might have just said “No,” did not constitute a seizure).


author: Justice Kennedy

text:
    COMMISSIONER OF INTERNAL REVENUE v. BANKS
    No. 03-892.
    Argued November 1, 2004
    Decided January 24, 2005

      Kennedy, J., delivered the opinion of the Court, in which all other Members joined, except Rehnquist, C. J., who took no part in the decision of the cases.

      David B. Salmons argued the cause pro hoc vice for petitioner in both cases. With him on the briefs were former Solicitor General Olson, Acting Solicitor General Clement, Assistant Attorney General O’Connor, Deputy Solicitor General Hungar, Richard Farber, and Kenneth W. Rosenberg.

      James R. Carty argued the cause pro hoc vice for respondent in No. 03-892. With him on the briefs were Robert G. Wilson, Russell R. Young, Roger J. Jones, William J. Wise, and Glenn R Schwartz. Philip N. Jones argued the cause for respondent in No. 03-907. With him on the briefs were Peter J. Duffy, Holly N. Mitchell, and Eric Schnapper.

      Together with No. 03-907, Commissioner of Internal Revenue v. Banaitis, on certiorari to the United States Court of Appeals for the Ninth Circuit.

      A brief of amici curiae urging reversal in both cases was filed for Gregg D. Polsky et al. by Mr. Polsky, pro se, and Brant J. Hellwig, pro se.

      Briefs of amici curiae urging affirmance in both cases were filed for the Association of Trial Lawyers of America by Jeffrey Robert White and Todd A. Smith; for the Equal Employment Advisory Council by Ann Elizabeth Reesman; for the Lawyers’ Committee for Civil Rights Under Law et al. by Jerome B. Libin, Mary E. Monahan, Barbara R. Amwine, Michael L. Foreman, Sarah C. Crawford, Audrey J. Wiggins, Ira A. Burnim, Vincent A. Eng, Dennis C. Hayes, and Dina R. Lassow; for the Mountain States Legal Foundation et al. by William Perry Pendley and J. Scott Detamore; for the National Employment Lawyers Association et al. by Douglas B. Huron, Victoria W. Ni, Richard A. Marcantonio, Richard A. Rothschild, Theodore M. Shaw, Norman J. Chachkin, Robert H. Stroup,
        and Thomas W. Osborne; for the Taxpayers Against Fraud Education Fund by Charles J. Cooper and Hamish P. M. Hume; and for Kenneth W. Gideon et al. by Mr. Gideon, pro se.

      Briefs of amici curiae were filed in both cases for the Oregon Trial Lawyers Association by Richard S. Yugler; for Stephen B. Cohen by Mr. Cohen, pro se; and for Charles Davenport by Mr. Davenport, pro se.

   Justice Kennedy

delivered the opinion of the Court.

The question in these consolidated cases is whether the portion of a money judgment or settlement paid to a plaintiff’s attorney under a contingent-fee agreement is income to the plaintiff under the Internal Revenue Code, 26 U. S. C. § 1 et seq. (2000 ed. and Supp. I). The issue divides the courts of appeals. In one of the instant cases, Banks v. Commissioner, 345 F. 3d 373 (2003), the Court of Appeals for the Sixth Circuit held the contingent-fee portion of a litigation recovery is not included in the plaintiff’s gross income. The Courts of Appeals for the Fifth and Eleventh Circuits also adhere to this view, relying on the holding, over Judge Wisdom’s dissent, in Cotnam v. Commissioner, 263 F. 2d 119, 125-126 (CA5 1959). Srivastava v. Commissioner, 220 F. 3d 353, 363-365 (CA5 2000); Foster v. United States, 249 F. 3d 1275, 1279-1280 (CA11 2001). In the other case under review, Banaitis v. Commissioner, 340 F. 3d 1074 (2003), the Court of Appeals for the Ninth Circuit held that the portion of the recovery paid to the attorney as a contingent fee is excluded from the plaintiff’s gross income if state law gives the plaintiff’s attorney a special property interest in the fee, but not otherwise. Six Courts of Appeals have held the entire litigation recovery, including the portion paid to an attorney as a contingent fee, is income to the plaintiff. Some of these Courts of Appeals discuss state law, but little of their analysis appears to turn on this factor. Raymond v. United States, 355 F. 3d 107, 113-116 (CA2 2004); Kenseth v. Commissioner, 259 F. 3d 881, 883-884 (CA7 2001); Baylin v. United States, 43 F. 3d 1451, 1454-1455 (CA Fed. 1995). Other Courts of Appeals have been explicit that the fee portion of the recovery is always income to the plaintiff regardless of the nuances of state law. O’Brien v. Commissioner, 38 T. C. 707, 712 (1962), aff’d, 319 F. 2d 532 (CA3 1963) (per curiam); Young v. Commissioner, 240 F. 3d 369, 377-379 (CA4 2001); Hukkanen-Campbell v. Commissioner, 274 F. 3d 1312, 1313-1314 (CA10 2001). We granted certiorari to resolve the conflict. 541 U. S. 958 (2004).

We hold that, as a general rule, when a litigant’s recovery constitutes income, the litigant’s income includes the portion of the recovery paid to the attorney as a contingent fee. We reverse the decisions of the Courts of Appeals for the Sixth and Ninth Circuits.

I

A. Commissioner v. Banks

In 1986, respondent John W. Banks, II, was fired from his job as an educational consultant with the California Department of Education. He retained an attorney on a contingent-fee basis and filed a civil suit against the employer in a United States District Court. The. complaint alleged employment discrimination in violation of 42 U. S. C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, as amended, 42 U. S. C. § 2000e et seq., and Cal. Govt. Code Ann. § 12965 (West 1986). The original complaint asserted various additional claims under state law, but Banks later abandoned these. After trial commenced in 1990, the parties settled for $464,000. Banks paid $150,000 of this amount to his attorney pursuant to the fee agreement.

Banks did not include any of the $464,000 in settlement proceeds as gross income in his 1990 federal income tax return. In 1997 the Commissioner of Internal Revenue issued Banks a notice of deficiency for the 1990 tax year. The Tax Court upheld the Commissioner’s determination, finding that all the settlement proceeds, including the $150,000 Banks had paid to his attorney, must be included in Banks’ gross income.

The Court of Appeals for the Sixth Circuit reversed in part. 345 F. 3d 373 (2003). It agreed the net amount received by Banks was included in gross income but not the amount paid to the attorney. Relying on its prior decision in Estate of Clarks ex rel. Brisco-Whitter v. United States, 202 F. 3d 854 (2000), the court held the contingent-fee agreement was not an anticipatory assignment of Banks’ income because the litigation recovery was not already earned, vested, or even relatively certain to be paid when the contingent-fee contract was made. A contingent-fee arrangement, the court reasoned, is more like a partial assignment of income-producing property than an assignment of income. The attorney is not the mere beneficiary of the client’s largess, but rather earns his fee through skill and diligence. 345 F. 3d, at 384-385 (quoting Estate of Clarks, supra, at 857-858). This reasoning, the court held, applies whether or not state law grants the attorney any special property interest (e. g., a superior lien) in part of the judgment or settlement proceeds.

B. Commissioner v. Banaitis

After leaving his job as a vice president and loan officer at the Bank of California in 1987, Sigitas J. Banaitis retained an attorney on a contingent-fee basis and brought suit in Oregon state court against the Bank of California and its successor in ownership, the Mitsubishi Bank. The complaint alleged that Mitsubishi Bank willfully interfered with Banaitis’ employment contract, and that the Bank of California attempted to induce Banaitis to breach his fiduciary duties to customers and discharged him when he refused. The jury awarded Banaitis compensatory and punitive damages. After resolution of all appeals and post-trial motions, the parties settled. The defendants paid $4,864,547 to Banaitis; and, following the formula set forth in the contingent-fee contract, the defendants paid an additional $3,864,012 directly to Banaitis’ attorney.

Banaitis did not include the amount paid to his attorney in gross income on his federal income tax return, and the Commissioner issued a notice of deficiency. The Tax Court upheld the Commissioner’s determination, but the Court of Appeals for the Ninth Circuit reversed. 340 F. 3d 1074 (2003). In contrast to the Court of Appeals for the Sixth Circuit, the Banaitis court viewed state law as pivotal. Where state law confers on the attorney no special property rights in his fee, the court said, the whole amount of the judgment or settlement ordinarily is included in the plaintiff’s gross income. Id., at 1081. Oregon state law, however, like the law of some other States, grants attorneys a superior lien in the contingent-fee portion of any recovery. As a result, the court held, contingent-fee agreements under Oregon law operate not as an anticipatory assignment of the client’s income but as a partial transfer to the attorney of some of the client’s property in the lawsuit.

II

To clarify why the issue here is of any consequence for tax purposes, two preliminary observations are useful. The first concerns the general issue of deductibility. For the tax years in question the legal expenses in these eases could have been taken as miscellaneous itemized deductions subject to the ordinary requirements, 26 U. S. C. §§ 67-68 (2000 ed. and Supp. I), but doing so would have been of no help to respondents because of the operation of the Alternative Minimum Tax (AMT). For noncorporate individual taxpayers, the AMT establishes a tax liability floor equal to 26 percent of the taxpayer’s “alternative minimum taxable income” (minus specified exemptions) up to $175,000, plus 28 percent of alternative minimum taxable income over $175,000. §§ 55(a), (b) (2000 ed.). Alternative minimum taxable income, unlike ordinary gross income, does not allow any miscellaneous itemized deductions. § 56(b)(1)(A)(i).

Second, after these cases arose Congress enacted the American Jobs Creation Act of 2004, 118 Stat. 1418. Section 703 of the Act amended the Code by adding § 62(a)(19). Id., at 1546. The amendment allows a taxpayer, in computing adjusted gross income, to deduct “attorney fees and court costs paid by, or on behalf of, the taxpayer in connection with any action involving a claim of unlawful discrimination.” Ibid. The Act defines “unlawful discrimination” to include a number of specific federal statutes, §§ 62(e)(1) to (16), any federal whistle-blower statute, §62(e)(17), and any federal, state, or local law “providing for the enforcement of civil rights” or “regulating any aspect of the employment relationship ... or prohibiting the discharge of an employee, the discrimination against an employee, or any other form of retaliation or reprisal against an employee for asserting rights or taking other actions permitted by law,” § 62(e)(18). Id., at 1547-1548. These deductions are permissible even when the AMT applies. Had the Act been in force for the transactions now under review, these cases likely would not have arisen. The Act is not retroactive, however, so while it may cover future taxpayers in respondents’ position, it does not pertain here.

Ill

The Internal Revenue Code defines “gross income” for federal tax purposes as “all income from whatever source derived.” 26 U. S. C. § 61(a). The definition extends broadly to all economic gains not otherwise exempted. Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 429-430 (1955); Commissioner v. Jacobson, 336 U. S. 28, 49 (1949). A taxpayer cannot exclude an economic gain from gross income by assigning the gain in advance to another party. Lucas v. Earl, 281 U. S. 111 (1930); Commissioner v. Sunnen, 333 U. S. 591, 604 (1948); Helvering v. Horst, 311 U. S. 112, 116-117 (1940). The rationale for the so-called anticipatory assignment of income doctrine is the principle that gains should be taxed “to those who earned them,” Lucas, supra, at 114, a maxim we have called “the first principle of income taxation,” Commissioner v. Culbertson, 337 U. S. 733, 739-740 (1949). The anticipatory assignment doctrine is meant to prevent taxpayers from avoiding taxation through “arrangements and contracts however skillfully devised to prevent [income] when paid from vesting even for a second in the man who earned it.” Lucas, 281 U. S., at 115. The rule is preventative and motivated by administrative as well as substantive concerns, so we do not inquire whether any particular assignment has a discernible tax avoidance purpose. As Lucas explained, “no distinction can be taken according to the motives leading to the arrangement by which the fruits are attributed to a different tree from that on which they grew.” Ibid.

Respondents argue that the anticipatory assignment doctrine is a judge-made antifraud rule with no relevance to contingent-fee contracts of the sort at issue here. The Commissioner maintains that a contingent-fee agreement should be viewed as an anticipatory assignment to the attorney of a portion of the client’s income from any litigation recovery. We agree with the Commissioner.

In an ordinary case attribution of income is resolved by asking whether a taxpayer exercises complete dominion over the income in question. Glenshaw Glass Co., supra, at 431; see also Commissioner v. Indianapolis Power & Light Co., 493 U. S. 203, 209 (1990); Commissioner v. First Security Bank of Utah, N. A., 405 U. S. 394, 403 (1972). In the context of anticipatory assignments, however, the assignor often does not have dominion over the income at the moment of receipt. In that instance the question becomes whether the assignor retains dominion over the income-generating asset, because the taxpayer “who owns or controls the source of the income, also controls the disposition of that which he could have received himself and diverts the payment from himself to others as the means of procuring the satisfaction of his wants.” Horst, supra, at 116-117. See also Lucas, supra, at 114-115; Helvering v. Eubank, 311 U. S. 122, 124-125 (1940); Sunnen, supra, at 604. Looking to control over the income-generating asset, then, preserves the principle that income should be taxed to the party who earns the income and enjoys the consequent benefits.

In the case of a litigation recovery the income-generating asset is the cause of action that derives from the plaintiff’s legal injury. The plaintiff retains dominion over this asset throughout the litigation. We do not understand respondents to argue otherwise. Rather, respondents advance two counterarguments. First, they say that, in contrast to the bond coupons assigned in Horst, the value of a legal claim is speculative at the moment of assignment, and may be worth nothing at all. Second, respondents insist that the claimant’s legal injury is not the only source of the ultimate recovery. The attorney, according to respondents, also contributes income-generating assets — effort and expertise— without which the claimant likely could not prevail. On these premises respondents urge us to treat a contingent-fee agreement as establishing, for tax purposes, something like a joint venture or partnership in which the client and attorney combine their respective assets — the client’s claim and the attorney’s skill — and apportion any resulting profits.

We reject respondents’ arguments. Though the value of the plaintiff’s claim may be speculative at the moment the fee agreement is signed, the anticipatory assignment doctrine is not limited to instances when the precise dollar value of the assigned income is known in advance. Lucas, supra; United States v. Basye, 410 U. S. 441, 445, 450-452 (1973). Though Horst involved an anticipatory assignment of a predetermined sum to be paid on a specific date, the holding in that case did not depend on ascertaining a liquidated amount at the time of assignment. In each of the cases before us, as in Horst, the taxpayer retained control over the income-generating asset, diverted some of the income produced to another party, and realized a benefit by doing so. As Judge Wesley correctly concluded in a recent case, the rationale of Horst applies fully to a contingent-fee contract. Raymond v. United States, 355 F. 3d, at 115-116. That the amount of income the asset would produce was uncertain at the moment of assignment is of no consequence.

We further reject the suggestion to treat the attorney-client relationship as a sort of business partnership or joint venture for tax purposes. The relationship between client and attorney, regardless of the variations in particular compensation agreements or the amount of skill and effort the attorney contributes, is a quintessential principal-agent relationship. Restatement (Second) of Agency § 1, Comment e (1957) (hereinafter Restatement); ABA Model Rules of Professional Conduct Rule 1.3, and Comment 1; Rule 1.7, and Comment 1 (2002). The client may rely on the attorney’s expertise and special skills to achieve a result the client could not achieve alone. That, however, is true of most principal-agent relationships, and it does not alter the fact that the client retains ultimate dominion and control over the underlying claim. The control is evident when it is noted that, although the attorney can make tactical decisions without consulting the client, the plaintiff still must determine whether to settle or proceed to judgment and make, as well, other critical decisions. Even where the attorney exercises independent judgment without supervision by, or consultation with, the client, the attorney, as an agent, is obligated to act solely on behalf of, and for the exclusive benefit of, the client-principal, rather than for the benefit of the attorney or any other party. Restatement §§ 13, 39, 387.

The attorney is an agent who is dutybound to act only in the interests of the principal, and so it is appropriate to treat the full amount of the recovery as income to the principal. In this respect Judge Posner’s observation is apt: “[T]he contingent-fee lawyer [is not] a joint owner of his client’s claim in the legal sense any more than the commission salesman is a joint owner of his employer’s accounts receivable.” Kenseth, 259 F. 3d, at 883. In both cases a principal relies on an agent to realize an economic gain, and the gain realized by the agent’s efforts is income to the principal. The portion paid to the agent may be deductible, but absent some other provision of law it is not excludable from the principal’s gross income.

This rule applies whether or not the attorney-client contract or state law confers any special rights or protections on the attorney, so long as these protections do not alter the fundamental principal-agent character of the relationship. Cf. Restatement § 13, Comment b, and § 14G, Comment a (an agency relationship is created where a principal assigns a chose in action to an assignee for collection and grants the assignee a security interest in the claim against the assign- or’s debtor in order to compensate the assignee for his collection efforts). State laws vary with respect to the strength of an attorney’s security interest in a contingent fee and the remedies available to an attorney should the client discharge or attempt to defraud the attorney. No state laws of which we are aware, however, even those that purport to give attorneys an “ownership” interest in their fees, e. g., 340 F. 3d, at 1082-1083 (discussing Oregon law); Cotnam, 263 F. 2d, at 125 (discussing Alabama law), convert the attorney from an agent to a partner.

Respondents and their amici propose other theories to exclude fees from income or permit deductibility. These suggestions include: (1) The contingent-fee agreement establishes a Subchapter K partnership under 26 U. S. C. §§ 702, 704, and 761, Brief for Respondent in No. 03-907, pp. 5-21; (2) litigation recoveries are proceeds from disposition of property, so the attorney’s fee should be subtracted as a capital expense pursuant to §§1001, 1012, and 1016, Brief for Association of Trial Lawyers of America as Amicus Curiae 23-28, Brief for Charles Davenport as Amicus Curiae 3-13; and (3) the fees are deductible reimbursed employee business expenses under § 62(a)(2)(A) (2000 ed. and Supp. I), Brief for Stephen B. Cohen as Amicus Curiae. These arguments, it appears, are being presented for the first time to this Court. We are especially reluctant to entertain novel propositions of law with broad implications for the tax system that were not advanced in earlier stages of the litigation and not examined by the Courts of Appeals. We decline comment on these supplementary theories. In addition, we do not reach the instance where a relator pursues a claim on behalf of the United States. Brief for Taxpayers Against Fraúd Education Fund as Amicus Curiae 10-20.

IV

The foregoing suffices to dispose of Banaitis’ case. Banks’ case, however, involves a farther consideration. Banks brought his claims under federal statutes that authorize fee awards to prevailing plaintiffs’ attorneys. He contends that application of the anticipatory assignment principle would be inconsistent with the purpose of statutory fee-shifting provisions. See Venegas v. Mitchell, 495 U. S. 82, 86 (1990) (observing that statutory fees enable “plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail”). In the federal system statutory fees are typically awarded by the court under the lodestar approach, Hensley v. Eckerhart, 461 U. S. 424, 433 (1983), and the plaintiff usually has little control over the amount awarded. Sometimes, as when the plaintiff seeks only injunctive relief, or when the statute caps plaintiffs’ recoveries, or when for other reasons damages are substantially less than attorney’s fees, court-awarded attorney’s fees can exceed a plaintiff’s monetary recovery. See, e. g., Riverside v. Rivera, 477 U. S. 561, 564-565 (1986) (compensatory and punitive damages of $33,350; attorney’s fee award of $245,456.25). Treating the fee award as income to the plaintiff in such cases, it is argued, can lead to the perverse result that the plaintiff loses money by winning the suit. Furthermore, it is urged that treating statutory fee awards as income to plaintiffs would undermine the effectiveness of fee-shifting statutes in deputizing plaintiffs and their lawyers to act as private attorneys general.

We need not address these claims. After Banks settled his case, the fee paid to his attorney was calculated solely on the basis of the private contingent-fee contract. There was no court-ordered fee award, nor was there any indication in Banks’ contract with his attorney, or in the settlement agreement with the defendant, that the contingent fee paid to Banks’ attorney was in lieu of statutory fees Banks might otherwise have been entitled to recover. Also, the amendment added by the American Jobs Creation Act redresses the concern for many, perhaps most, claims governed by fee-shifting statutes.

* * *

For the reasons stated, the judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

. The Chief Justice took no part in the decision of these cases.


author: Per Curiam.

text:
    HOWELL, aka COX v. MISSISSIPPI
    No. 03-9560.
    Argued November 29, 2004
    Decided January 24, 2005

      Ronnie Monroe Mitchell argued the cause for petitioner. With him on the briefs were André de Gruy, Duncan Lott, and William Odum Richardson, by appointment of the Court, 543 U. S. 977.

      Jim Hood, Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Judy Thomas Martin, Special Assistant Attorney General.

        Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae.

   Per Curiam.

Petitioner Marlon Howell contends that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by refusing to require a jury instruction about a lesser included offense in his capital case. He did not, however, raise this claim in the Supreme Court of Mississippi, which unsurprisingly did not address it. As a result, we dismiss the writ of certiorari as improvidently granted.

Petitioner was convicted and sentenced to death for killing Hugh David Pernell. Shortly after 5 a.m. on May 15, 2000, Pernell was delivering newspapers from his car when the occupants of another car motioned for him to stop. The evidence at trial indicated that, when both cars had pulled over, petitioner got out of the trailing car and approached the driver’s side of Pernell’s car. After a brief conversation and perhaps some kind of scuffle, petitioner pulled out a pistol, shot Pernell through the heart, got back in the other ear, and fled the scene. See 860 So. 2d 704, 712-715,738-739 (Miss. 2003). At trial, petitioner argued both that he was in another city at the time of the killing and that the evidence was insufficient to prove that Pernell was killed during an attempted robbery (which would deprive the State of an element of capital murder). As part of his nonalibi defense, petitioner sought to supplement the State’s proposed jury instruction on capital murder with instructions on manslaughter and simple murder. The trial court refused the additional instructions. The jury found petitioner guilty of capital murder and separately concluded that he should be sentenced to death.

On appeal to the State Supreme Court, one of petitioner’s 28 claims of error was the trial court’s failure “to give the defendant an instruction on the offense of simple murder or manslaughter.” App. 39. In that argument, petitioner cited three cases from the State Supreme Court about lesser-included-offense instructions, and the only opinion whose original language he quoted was a noncapital case. Ibid, (quoting, with modifications, Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993) (a capital case), in turn quoting McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989) (a non-capital case), in turn quoting Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985) (a noncapital case)). Petitioner argued that, because the jury “could have found and returned the lesser included offense of simple murder or manslaughter,” the failure to give instructions on those offenses was “error” that left the jury no “choice but either to turn [him] loose or convict him of [cjapital [mjurder.” App. 40. In the course of affirming petitioner’s conviction and death sentence, the State Supreme Court found that “[t]he facts of this case clearly do not support or warrant” the instruction for manslaughter or simple murder. 860 So. 2d, at 744. The court cited and quoted a prior noncapital decision, which construed a state statute and concluded that an instruction should be refused if it would cause the jury to “ ‘ignore the primary charge’ ” or “ ‘if the evidence does not justify submission of a lesser-included offense.’ ” Ibid, (quoting Presley v. State, 321 So. 2d 309, 310-311 (Miss. 1975)). The court also cited Grace v. State, 375 So. 2d 419 (Miss. 1979), an aggravated-assault case rejecting an instruction for simple assault.

Petitioner sought certiorari from this Court, arguing that his death sentence is unconstitutional under that rule of our capital jurisprudence set forth in Beck v. Alabama, 447 U. S. 625, 638 (1980) (“[I]f the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the State] is constitutionally prohibited from withdrawing that option from the jury in a capital case”). See Pet. for Cert. 5. We granted certiorari, but asked the parties to address the following additional question: “ ‘Was petitioner’s federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 U. S. C. § 1257?’ ” 542 U. S. 936 (2004). Our answer to that question prevents us from reaching petitioner’s constitutional claim.

Congress has given this Court the power to review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had ... where any... right ... is specially set up or claimed under the Constitution or the treaties or statutes of... the United States.” 28 U. S. C. § 1257(a) (emphasis added). Under that statute and its predecessors, this Court has almost unfailingly refused to consider any federal-law challenge to a state-court decision unless the federal claim “was either addressed by or properly presented to the state court that rendered the decision we have been asked to review.” Adams v. Robertson, 520 U. S. 83, 86 (1997) (per curiam); see also Illinois v. Gates, 462 U. S. 213, 218 (1983) (tracing this principle back to Crowell v. Randell, 10 Pet. 368, 392 (1836), and Owings v. Norwood’s Lessee, 5 Cranch 344 (1809)).

Petitioner’s brief in the State Supreme Court did not properly present his claim as one arising under federal law. In the relevant argument, he did not cite the Constitution or even any cases directly construing it, much less any of this Court’s cases. Instead, he argues that he presented his federal claim by citing Harveston v. State, 493 So. 2d 365 (Miss. 1986), which cited (among other cases) Fairchild v. State, 459 So. 2d 793 (Miss. 1984), which in turn cited Beck, but only by way of acknowledging that Mississippi’s general rule requiring lesser-included-offense instructions “takes on constitutional proportions” in capital cases. 459 So. 2d, at 800. Assuming it constituted adequate briefing of the federal question under state-law standards, petitioner’s daisy chain — which depends upon a case that was cited by one of the cases that , was cited by one of the cases that petitioner cited — is too lengthy to meet this Court’s standards for proper presentation of a federal claim. As we recently explained in a slightly different context, “[a] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief . . . by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U. S. 27, 32 (2004). In the context of § 1257, the same steps toward clarity are just as easy to take and are generally necessary to establish that a federal question was properly presented to a state court. Petitioner did none of these things.

Petitioner also contends that he raised his federal claim by implication because the state-law rule on which he relied was “identical,” Tr. of Oral Arg. 17, or “virtually identical,” Brief for Petitioner 17-18, to the constitutional rule articulated in Beck. Assuming, without deciding, that identical standards might overcome a petitioner’s failure to identify his claim as federal, Mississippi’s rule regarding lesser-included-offense instructions is not identical to Beck — or at least not identical to the Mississippi Supreme Court’s interpretation of Beck. Mississippi’s rule applies even when the jury is not choosing only between acquittal and death. The Mississippi Supreme Court’s interpretation of Beck, on the other hand, holds that case inapplicable where the jury has the additional option of life imprisonment, see Jackson v. State, 684 So. 2d 1213, 1228 (1996)—a conclusion that finds some support in our cases, see Hopkins v. Reeves, 524 U. S. 88, 98 (1998) (“In Beck, the death penalty was automatically tied to conviction, and Beck’s jury was told that if it convicted the defendant of the charged offense, it was required to impose the death penalty”); Schad v. Arizona, 501 U. S. 624, 646 (1991) (“Our fundamental concern in Beck was that a jury ... might... vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all”). Moreover, unlike Beck, see 447 U. S., at 638, n. 14, Mississippi’s rule on lesser-included-offense instructions applies in noncapital cases (as shown by the cases petitioner did cite). Thus, one opinion of the Mississippi Supreme Court appears to have treated a claim under Beck as distinct from one arising under the Mississippi rule. See Goodin v. State, 787 So. 2d 639, 656 (2001) (“Having found no [federal] constitutional flaws in the jury instruction given, we must now determine whether our practice entitles Goodin to a manslaughter instruction. We have held that there must be some evidentiary support to grant an instruction for manslaughter”).

Petitioner suggests that we need not treat his failure to present his federal claim in state court as jurisdictional. Reply Brief for Petitioner 4, and n. 1. Notwithstanding the long line of cases clearly stating that the presentation requirement is jurisdictional, see, e. g., Exxon Corp. v. Eagerton, 462 U. S. 176, 181, n. 3 (1983); Cardinale v. Louisiana, 394 U. S. 437, 438-439 (1969) (citing cases), a handful of exceptions (discussed in Gates, supra, at 219) have previously led us to conclude that this is “an unsettled question.” Bankers Life & Casualty Co. v. Crenshaw, 486 U. S. 71, 79 (1988). As in prior cases, however, we need not decide today “whether our requirement that a federal claim be addressed or properly presented in state court is jurisdictional or prudential, because even treating the rule as purely prudential, the circumstances here justify no exception.” Adams, 520 U. S., at 90 (citations omitted); accord, Yee v. Escondido, 503 U. S. 519, 533 (1992); Bankers Life, supra, at 79; Heath v. Alabama, 474 U. S. 82, 87 (1985); Gates, 462 U. S., at 222.

Accordingly, we dismiss the writ of certiorari as improvidently granted.

It is so ordered.

       Petitioner argues not that the State Supreme Court actually addressed his federal claim, but rather that it “had an adequate opportunity to address” it. Brief for Petitioner 19.

       See, e. g., Adams v. Robertson, 520 U. S. 83, 89, n. 3 (1997) (per curiam) (concluding that “passing invocations of ‘due process’ ” that “fail to cite the Federal Constitution or any cases relying on the Fourteenth Amendment” do not “meet our minimal requirement that it must be clear that a federal claim was presented”); Webb v. Webb, 451 U. S. 493, 496 (1981) (finding a reference to “full faith and credit” insufficient to raise a federal claim without a reference to the U. S. Constitution or to any cases relying on it); New York Central R. Co. v. New York, 186 U. S. 269, 273 (1902) (“[I]t is well settled in this court that it must be made to appear that some provision of the Federal, as distinguished from the state, Constitution was relied upon, and that such provision must be set forth”); Oxley Stave Co. v. Butler County, 166 U. S. 648, 655 (1897) (a party’s intent to invoke the Federal ■Constitution must be “unmistakably” declared, and the statutory requirement is not met if “the purpose of the party to assert a Federal right is left to mere inference”).

       In Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 476 U. S. 877, 883 (1986), the Court chose to reach a question that had not been presented in state court for two reasons that are inapplicable here: because the other party had no objection to reaching the question, and because the case had previously been remanded to the state court on other grounds.