author: Me. Justice Powell Mr. Chief Justice Burger, Me. Justice Blackmun,

text:
    ARKANSAS v. SANDERS
    No. 77-1497.
    Argued February 27, 1979 —
    Decided June 20, 1979

      Powell, J., delivered the opinion of the Court, in which BreNNAN, Stewart, White, and Marshall, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, in which Stevens, J., joined, post, p. 766. Blackmun, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 768.

      Joseph H. Purvis, Deputy Attorney General of Arkansas, argued the cause for petitioner pro hac vice. ° With him on the briefs were Steve Clark, Attorney General, and Bill Clinton, former Attorney General.

      Jack T. Lassiter, by appointment of the Court, 439 U. S. 1062, argued the cause and filed a brief for respondent.

        Fred E. Inbau, Frank Carrington, Wayne W. Schmidt, and James P. Costello filed a brief for Americans for Effective Law Enforcement, Inc., as amicus curiae urging reversal.

   Me. Justice Powell

delivered the opinion of the Court.

This case presents the question whether, in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband. We took this case by writ of certiorari to the Supreme Court of Arkansas to resolve some apparent misunderstanding as to the application of our decision in United States v. Chadwick, 433 U. S. 1 (1977), to warrantless searches of luggage seized from automobiles.

I

On April 23, 1976, Officer David Isom of the Little Rock, Ark., Police Department received word from an informant that at 4:35 that afternoon respondent would arrive aboard an American Airlines flight at gate No. 1 of the Municipal Airport of Little Rock. According to the informant, respondent would be carrying a green suitcase containing marihuana. Both Isom and the informant knew respondent well, as in January 1976 the informant had given the Little Rock Police Department information that had led to respondent’s arrest and conviction for possession of marihuana. Acting on the tip, Officer Isom and two other police officers placed the airport under surveillance. As the informant had predicted, respondent duly arrived at gate No. 1. The police watched as respondent deposited some hand luggage in a waiting taxicab, returned to the baggage claim area, and met a man whom police subsequently identified as David Rambo. While Rambo waited, respondent retrieved from the airline baggage service a green suitcase matching that described by the informant. Respondent gave this suitcase to his companion and went outside, where he entered the taxi into which he had put his luggage. Rambo waited a short while in the airport and then joined respondent in the taxi, after placing the green suitcase in the trunk of the vehicle.

When respondent’s taxi drove away carrying respondent, Rambo, and the suitcase, Officer Isom and one of his fellow officers gave pursuit and, with the help of a patrol car, stopped the vehicle several blocks from the airport. At the request of the police, the taxi driver opened the trunk of his vehicle, where the officers found the green suitcase. Without asking the permission of either respondent or Rambo, the police opened the unlocked suitcase and discovered what proved to be 9.3 pounds of marihuana packaged in 10 plastic bags.

On October 14, 1976, respondent and Rambo were charged with possession of marihuana with intent to deliver in violation of Ark. Stat. Ann. § 82-2617 (1976). Before trial, respondent moved to suppress the evidence obtained from the suitcase, contending that the search violated his rights under the Fourth and Fourteenth Amendments. The trial court held a hearing on January 31, 1977, and denied the suppression motion without explanation. After respondent’s conviction by a jury on February 3, 1977, he was sentenced to 10 years in prison and was fined $15,000.

On appeal the Supreme Court of Arkansas reversed respondent’s conviction, ruling that the trial court should have suppressed the marihuana because it was obtained through an unlawful search of the suitcase. 262 Ark. 595, 559 S. W. 2d 704 (1977). Relying upon United States v. Chadwick, supra, and Coolidge v. New Hampshire, 403 U. S. 443 (1971), the court concluded that a warrantless search generally must be supported by “probable cause coupled with exigent circumstances.” 262 Ark., at 599, 559 S. W. 2d, at 706. In the present case, the court found there was ample probable cause for the police officers’ belief that contraband was contained in the suitcase they searched. The court found to be wholly lacking, however, any exigent circumstance justifying the officers’ failure to secure a warrant for the search of the luggage. With the police in control of the automobile and its occupants, there was no danger that the suitcase and its contents would be rendered unavailable to due legal process. The court concluded, therefore, that there was “nothing in this set of circumstances that would lend credence to an assertion of impracticality in obtaining a search warrant.” Id., at 600, 559 S. W. 2d, at 706.

II

Although the general principles applicable to claims of Fourth Amendment violations are well settled, litigation over requests for suppression of highly relevant evidence continues to occupy much of the attention of courts at all levels of the state and federal judiciary. Courts and law enforcement officials often find it difficult to discern the proper application of these principles to individual cases, because the circumstances giving rise to suppression requests can vary almost infinitely. Moreover, an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights. The present case presents an example. Only two Terms ago, we held that a locked footlocker could not lawfully be searched without a warrant, even though it had been loaded into the trunk of an automobile parked at a curb. United States v. Chadwick, 433 U. S. 1 (1977). In earlier cases, on the other hand, the Court sustained the constitutionality of warrantless searches of automobiles and their contents under what has become known as the “automobile exception” to the warrant requirement. See, e. g., Chambers v. Maroney, 399 U. S. 42 (1970); Carroll v. United States, 267 U. S. 132 (1925). We thus are presented with the task of determining whether the warrantless search of respondent's suitcase falls on the Chadwick or the Chambers/Carroll side of the Fourth Amendment line. Although in a sense this is a line-drawing process, it must be guided by established principles.

We commence with a summary of these principles. The Fourth Amendment protects the privacy and security of persons in two important ways. First, it guarantees ''[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In addition, this Court has interpreted the Amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the Warrant Clause. See, e. g., Mincey v. Arizona, 437 U. S. 385, 390 (1978); United States v. Chadwick, supra, at 9; United States v. United States District Court, 407 U. S. 297, 317 (1972); Katz v. United States, 389 U. S. 347, 357 (1967); Agnello v. United States, 269 U. S. 20, 33 (1925). In the ordinary case, therefore, a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment. See United States v. United States District Court, supra. As the Court said in Coolidge v. New Hampshire, supra, at 481:

“The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow 'weighed’ against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly overzealous executive officers’ who are a part of any system of law enforcement.”

The prominent place the warrant requirement is given in our decisions reflects the “basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.” United States v. United States District Court, supra, at 317. By requiring that conclusions concerning probable cause and the scope of a search “be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U. S. 10, 14 (1948), we minimize the risk of unreasonable assertions of executive authority. See McDonald v. United States, 335 U. S. 451, 455-456 (1948).

Nonetheless, there are some exceptions to the warrant requirement. These have been established where it was concluded that the public interest required some flexibility in the application of the general rule that a valid warrant is a prerequisite for a search. See United States v. Martinez-Fuerte, 428 U. S. 543, 555 (1976). Thus, a few “jealously and carefully drawn” exceptions provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. See United States v. United States District Court, supra, at 318. But because each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and “the burden is on those seeking the exemption to show the need for it.” United States v. Jeffers, 342 U. S. 48, 51 (1951). See Chimel v. California, 395 U. S. 752, 762 (1969); Katz v. United States, supra, at 357. Moreover, we have limited the reach of each exception to that which is necessary to accommodate the identified needs of society. See Mincey v. Arizona, supra, at 393; United States v. Chadwick, 433 U. S., at 15; Coolidge v. New Hampshire, 403 U. S., at 455.

One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime. See United States v. Martinez-Fuerte, supra, at 561-562; United States v. Ortiz, 422 U. S. 891, 896 (1975); Texas v. White, 423 U. S. 67, 68 (1975). As the Court said in Carroll v. United States, 267 U. S., at 153:

“[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant . ...”

There are essentially two reasons for the distinction between automobiles and other private property. First, as the Court repeatedly has recognized, the inherent mobility of automobiles often makes it impracticable to obtain a warrant. See, e. g., United States v. Chadwick, supra, at 12; Chambers v. Maroney, 399 U. S., at 49-50; Carroll v. United States, supra. In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property. See Rakas v. Illinois, 439 U. S. 128, 155 (1978) (Powell, J., concurring); United States v. Chadwick, supra; South Dakota v. Opperman, 428 U. S. 364, 368 (1978); Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion); Cady v. Dombrowski, 413 U. S. 433, 441-442 (1973); Almeida-Sanchez v. United States, 413 U. S. 266, 279 (1973) (Powell, J., concurring).

Ill

In the present case, the State argues that the warrantless search of respondent’s suitcase was proper under Carroll and its progeny. The police acted properly — indeed commendably — in apprehending respondent and his luggage. They had ample probable cause to believe that respondent’s green suitcase contained marihuana. A previously reliable informant had provided a detailed account of respondent’s expected arrival at the Little Rock Airport, which account proved to be accurate in every detail, including the color of the suitcase in which respondent would be carrying the marihuana. Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband. See Chambers v. Maroney, supra, at 52. At oral argument, respondent conceded that the stopping of the taxi and the seizure of the suitcase were constitutionally unobjectionable. See Tr. of Oral Arg. 30, 44-46.

The only question, therefore, is whether the police, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search. A lawful search of luggage generally may be performed only pursuant to a warrant. In Chadwick, we declined an invitation to extend the Carroll exception to all searches of luggage, noting that neither of the two policies supporting warrantless searches of automobiles applies to luggage. Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, “there was not the slightest danger that [the luggage] or its contents could have been removed before a valid search warrant could be obtained.” 433 U. S., at 13. And, as we observed in that case, luggage is a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy. Ibid.

The State argues, nevertheless, that the warrantless search of respondent’s suitcase was proper, not because the property searched was luggage, but rather because it was taken from an automobile lawfully stopped and searched on the street. In effect, the State would have us extend Carroll to allow war-rantless searches of everything found within an automobile, as well as of the vehicle itself. As noted above, the Supreme Court of Arkansas found our decision in Chadwick virtually controlling in this case. The State contends, however, that Chadwick does not control because in that case the vehicle had remained parked at the curb where the footlocker had been placed in its trunk and that therefore no argument was made that the “automobile exception” was applicable. This Court has not had occasion previously to rule on the constitutionality of a warrantless search of luggage taken from an automobile lawfully stopped. Rather, the decisions to date have involved searches of some integral part of the automobile. See, e. g., South Dakota v. Opperman, supra, at 366 (glove compartment); Texas v. White, 423 U. S., at 68 (passenger compartment); Cady v. Dombrowski, supra, at 437 (trunk); Chambers v. Maroney, supra, at 44 (concealed compartment under the dashboard); Carroll v. United States, 267 U. S., at 136 (behind the upholstering of the seats).

We conclude that the State has failed to carry its burden of demonstrating the need for warrantless searches of luggage properly taken from automobiles. A closed suitcase in the trunk of an automobile may be as mobile as the vehicle in which it rides. But as we noted in Chadwick, the exigency of mobility must be assessed at the point immediately before the search — after the police have seized the object to be searched and have it securely within their control. See 433 U. S., at 13. Once police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken. Accordingly, as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places.

Similarly, a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations. One is not less inclined to place private, personal possessions in a suitcase merely because the suitcase is to be carried in an automobile rather than transported by other means or temporarily checked or stored. Indeed, the very purpose of a suitcase is to serve as a repository for personal items when one wishes to transport them. Accordingly, the reasons for not requiring a warrant for the search of an automobile do not apply to searches of personal luggage taken by police from automobiles. We therefore find no justification for the extension of Carroll and its progeny to the warrantless search of one’s personal luggage merely because it was located in an automobile lawfully stopped by the police.

In sum, we hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations. Thus, insofar as the police are entitled to search such luggage without a warrant, their actions must be justified under some exception to the warrant requirement other than that applicable to automobiles stopped on the highway. Where — as in the present case — the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained. In this way, constitutional rights of suspects to prior judicial review of searches will be fully protected.

The judgment of the Arkansas Supreme Court is

Affirmed.

Mr. Chief Justice Burger,

with whom Mr. Justice Stevens joins,

concurring in the judgment.

I concur in the Court’s judgment but cannot join its unnecessarily broad opinion, which seems to treat this case as if it involved the “automobile” exception to the warrant requirement. It is not such a case.

Because the police officers had probable cause to believe that respondent’s green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 U. S. 1 (1977). The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner’s arrest occurs in a public place. Whether arrested in a hotel lobby, an airport, a railroad terminal, or on a public street, as here, the owner has the right to expect that the contents of his luggage will not, without his consent, be exposed on demand of the police. If not carrying contraband, many persons arrested in such circumstances might choose to consent to a search of their luggage to obviate any delay in securing their release. But even if wholly innocent, some persons might well prefer not to have the contents of their luggage exposed in a public place. They may stand on their right to privacy and require a search warrant. The warrant requirement is not so onerous as to command suspension of Fourth Amendment guarantees once the receptacle involved is securely in the control of the police, as it was here after Sanders’ arrest.

The breadth of the Court’s opinion and its repeated references to the “automobile” from which respondent’s suitcase was seized at the time of his arrest, however, might lead the reader to believe — as the dissenters apparently do — that this case involves the “automobile” exception to the warrant requirement. See ante, at 762-765, and n. 14. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an “automobile” exception case. The Court need say no more.

This case simply does not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car’s structure. I am not sure whether that would be a stronger or weaker case for requiring a warrant to search the suitcase when a warrantless search of the automobile is otherwise permissible. But it seems to me it would be better to await a case in which the question must be decided.

The dissent complains that the Court does not adopt a “clear” rule, presumably one capable of resolving future Fourth Amendment litigation. That is not cause for lament, however desirable it might be to fashion a universal prescription governing the myriad Fourth Amendment cases that might arise. We are construing the Constitution, not writing a statute or a manual for law enforcement officers. My disagreement with the Court’s opinion is very different from that of the dissenters. Our institutional practice, based on hard experience, generally has been to refrain from deciding questions not presented by the facts of a case; there are risks in formulating constitutional rules broader than required by the facts to which they are applied. See Ashwander v. TVA, 297 U. S. 288, 346-348 (1936).

Me. Justice Blackmun,

with whom Mr. Justice Rehnquist joins,

dissenting.

This case illustrates the difficulties and confusion that United States v. Chadwick, 433 U. S. 1 (1977), has spawned and will continue to spawn. For reasons stated in dissent in Chadwick, id., at 18-22 and 24, I continue to feel that that decision was wrong.

The Court today goes farther down the Chadwick road, undermines the automobile exception, and, while purporting to clarify the confusion occasioned by Chadwick, creates, in my view, only greater difficulties for law enforcement officers, for prosecutors, for those suspected of criminal activity, and, of course, for the courts themselves. Still hanging in limbo, and probably soon to be litigated, are the briefcase, the wallet, the package, the paper bag, and every other kind of container.

I am unpersuaded by the Court’s casual statement, ante, at 762 n. 9, that Chadwick and this case are factually similar “in several critical respects.” Even accepting Chadwick as good law, which I do not, this, for me, is a different case. In Chadwick, the defendants were arrested, and a 200-pound, double-locked footlocker was seized, as the locker was being loaded into the open trunk of a stationary automobile. The relationship between the footlocker and the vehicle was sufficiently attenuated that the Government chose not to argue in this Court that the automobile exception applied. 433 U. S., at 11. Here, in contrast, the Little Rock police stopped a taxicab on a busy highway at the height of late afternoon traffic. They had probable cause to believe the taxi contained contraband narcotics. They opened the trunk, and briefly examined the contents of a small unlocked suitcase inside. The State has vigorously contended throughout these proceedings that the warrantless search of the trunk and the unlocked suitcase was constitutionally permissible under the automobile exception.

I fully agree. If “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant,” Carroll v. United States, 267 U. S. 132, 153 (1925), then, in my view, luggage and similar containers found in an automobile may be searched for contraband without a warrant. The luggage, like the automobile transporting it, is mobile. And the expectation of privacy in a suitcase found in the car is probably not significantly greater than the expectation of privacy in a locked glove compartment or trunk.

To be sure, as the dissent acknowledged in Chadwick, 433 U. S., at 19, impounding the luggage without searching it would be a less intrusive alternative than searching it on the spot. But this Court has not distinguished between the “lesser” intrusion of a seizure and the “greater” intrusion of a search, either with respect to automobiles, Chambers v. Maroney, 399 U. S. 42, 51-52 (1970), or with respect to persons subject to custodial arrest. United States v. Robinson, 414 U. S. 218, 235 (1973). And I see no reason to impose such a distinction here. Given the significant encroachment on privacy interests entailed by a seizure of personal property, the additional intrusion of a search may well be regarded as incidental. Moreover, the additional protection provided by a search warrant will be minimal. Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases. Finally, the carving out of a special warrant requirement for one type of personal property, but not for others, will impose untoward costs on the criminal justice systems of this country in terms of added delay and uncertainty.

The impractical nature of the Court’s line-drawing is brought into focus if one places himself in the position of the policeman confronting an automobile that properly has been stopped. In approaching the vehicle and its occupants, the officer must divide the world of personal property into three groups. If there is probable cause to arrest the occupants, then under Chimel v. California, 395 U. S. 752 (1969), he may search objects within the occupants’ immediate control, with or without probable cause. If there is probable cause to search the automobile itself, then under Carroll and Chambers the entire interior area of the automobile may be searched, with or without a warrant. But under Chadwick and the present case, if any suitcase-like object is found in the car outsidé the immediate control area of the occupants, it cannot be searched, in the absence of exigent circumstances, without a warrant.

The inherent opaqueness of these “principles,” in terms of the policies underlying the Fourth and Fourteenth Amendments, and the confusion to be created for all concerned, are readily illustrated. Suppose a portable luggage-container-rack is affixed to the top of the vehicle. Is the arresting officer constitutionally able to open this on the spot, on the theory that it is like the car’s trunk, or must he remove it and take it to the station for a warrant, on the theory that it is like the 200-pound footlocker in Chadwick? Or suppose there is probable cause to arrest persons seated in the front seat of the automobile, and a suitcase rests on the back seat. Is that suitcase within the area of immediate control, such that the Chadwick-Sanders rules do not apply? Or suppose the arresting officer opens the car’s trunk and- finds that it contains an array of containers — an orange crate, a lunch bucket, an attaché case, a duffelbag, a cardboard box, a backpack, a tote-bag, and a paper bag. Which of these may be searched immediately, and which are so “personal” that they must be impounded for future search only pursuant to a warrant? The problems of distinguishing between “luggage” and “some integral part of the automobile,” ante, at 763; between luggage that is within the “immediate control” of the arrestee and luggage that is not; and between “personal luggage” and other “containers and packages” such as those most curiously described ante, at 764-765, n. 13, will be legion. The lines that will be drawn will not make much sense in terms of the policies of the Fourth and Fourteenth Amendments. . And the heightened possibilities for error will mean that many convictions will be overturned, highly relevant evidence again will be excluded, and guilty persons will be set free in return for little apparent gain in precise and clearly understood constitutional analysis.

In my view, it would be better to adopt a clear-cut rule to the effect that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be seized and searched without a warrant pursuant to Carroll and Chambers. Cf. United States v. Chadwick, 433 U. S., at 21-22, and n. 3 (dissenting opinion). Such an approach would simplify the constitutional law of criminal procedure without seriously derogating from the values protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures.

       Compare United States v. Finnegan, 568 F. 2d 637, 641-642 (CA9 1977), with United States v. Stevie, 582 F. 2d 1175, 1178-1179 (CA8 1978) (en banc).

       In addition to the marihuana found in the suitcase, police officers found one ounce of heroin hidden in their patrol car after transporting Rambo to police headquarters. Accordingly, Rambo also was charged with possession of heroin with intent to deliver. Immediately before trial on both counts, the court severed the heroin-possession count for later trial.

       “With the suitcase safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.” 262 Ark., at 601, 559 S. W. 2d, at 707. The court also rejected the State's contention that luggage is entitled to a lesser protection against warrantless searches than are other private areas, such as homes. It noted that suitcases, unlike automobiles, customarily are the repositories for personal effects.

       The Warrant Clause of the Fourth Amendment provides that “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” The Fourth Amendment has been made fully applicable to the States by the Fourteenth Amendment. See Mapp v. Ohio, 367 U. S. 643 (1961); Wolf v. Colorado, 338 U. S. 25 (1949). In this opinion we refer to the Fourth Amendment as it so applies to the State of Arkansas.

       The need for a carefully drawn, limited warrant for searches of private premises was the product in large part of the colonists’ resentment of the writs of assistance to which they were subjected by the English. See United States v. Chadwick, 433 U. S. 1, 8 (1977); J. Landynski, Search and Seizure and the Supreme Court 19 (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51-78 (1937). Mr. Justice Frankfurter went so far as to suggest that abuses of the writs of assistance were “so deeply felt by the Colonies as to be one of the potent causes of the Revolution.” United States v. Rabinowitz, 339 U. S. 56, 69 (1950) (dissenting opinion).

        Jones v. United States, 357 U. S. 493, 499 (1958).

       The willingness of courts to excuse the absence of a warrant where spontaneous searches are required of a vehicle on the road has led to what is called the “automobile exception” to the warrant requirement, although the exception does not invariably apply whenever automobiles are searched. See, e. g., Coolidge v. New Hampshire, 403 U. S. 443, 461-462 (1971) (“The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears”). See generally Moylan, The Automobile Exception: What it is and What it is not — A Rationale in Search of a Clearer Label, 27 Mercer L. Rev. 987 (1976).

       Respondent concedes that the suitcase was his property, see Brief for Respondent 3, and so there is no question of his standing to challenge the search. See Simmons v. United States, 390 U. S. 377, 387-388 (1968). Cf. Rakas v. Illinois, 439 U. S. 128, 148-149 (1978).

       The facts of the two cases are similar in several critical respects. In Chadwick, a locked, 200-pound footlocker was searched without a warrant after the police, acting with probable cause, had taken it from the trunk of a parked automobile. In the present case, respondent’s comparatively small, unlocked suitcase also had been placed in the trunk of an automobile and was searched without a warrant by police acting upon probable cause. We do not view the difference in the sizes of the footlocker and suitcase as material here; nor did respondent’s failure to lock his suitcase alter its fundamental character as a repository for personal, private effects. Cf. Note, A Reconsideration of the Katz Expectation of Privacy Test, 76 Mich. L. Rev. 154, 170 (1977).

       The difficulties in seizing and securing automobiles have led the Court to make special allowances for their search. See n. 14, infra.

       There may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase. Cf. Cady v. Dombrowski, 413 U. S. 433 (1973) (police had reason to suspect automobile trunk contained a weapon). Generally, however, such exigencies will depend upon the probable contents of the luggage and the suspect’s access to those contents — not upon whether the luggage is taken from an automobile. In the present case the State has conceded that there were no special exigencies. See Tr. of Oral Arg. 16.
      Nor do we consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e. g., United States v. Robinson, 414 U. S. 218 (1973). The State has not argued that respondent's suitcase was searched incident to his arrest, and it appears'that the bag was not within his “immediate control” at the time of the search.

       We have recognized that personal property brought into the country may be searched at the border under circumstances that would not otherwise justify a warrantless search. See United States v. Ramsey, 431 U. S. 606, 616-617 (1977). Arkansas does not assert, however, that the search of respondent’s luggage was a border search. Moreover, it may be that the public safety requires luggage to be searched without a warrant in some circumstances — such as when luggage is about to be placed onto an airplane. This presents questions under the Fourth Amendment wholly absent from the present case.
      It is beyond question that the police easily could have obtained a warrant to search respondent’s bag if they had taken the suitcase to a magistrate. They had probable cause to believe not only that respondent was carrying marihuana, but also that the contraband was contained in the suitcase that they seized. The State argues that under the circumstances of this case inconvenience to all concerned would have been the only result of deferring search of the suitcase until a warrant was obtained. Those in respondent’s position who find such inconvenience unacceptable may avoid it simply by consenting to the search.

       Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to “plain view,” thereby obviating the need for a warrant. See Harris v. United States, 390 U. S. 234, 236 (1968) (per curiam). There will be difficulties in determining which parcels taken from an automobile require a warrant for their search and which do not. Our decision in this case means only that a warrant generally is required before personal luggage can be searched and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.

       We are not persuaded by the State’s argument that, under Chambers v. Maroney, 399 U. S. 42 (1970), if the police were entitled to seize the suitcase, then they were entitled to search it. In Chambers, the Court upheld the warrantless search of an automobile stopped on the highway by police who believed that its occupants had robbed a gasoline station a short time before. The Court recognized that “[a]rguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained Id., at 51. Nonetheless, the Court ruled that a warrantless search was permissible, concluding that there was no constitutional difference between the intrusion of seizing and holding the automobile until a warrant could be obtained, on the one hand, and searching the vehicle without a warrant, on the other.
      We view, however, the seizure of a suitcase as quite different from the seizure of an automobile. In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover, once seized automobiles were taken from the highway the police would be responsible for providing some appropriate location where they could be kept, with due regard to the safety of the vehicles and their contents, until a magistrate ruled on the application for a warrant. Such a constitutional requirement therefore would have imposed severe, even impossible, burdens on many police departments. See Note, Warrant-less Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835, 841-842 (1974). No comparable burdens are likely to exist with respect to the seizure of personal luggage.

       Since respondent was not formally arrested until after the suitcase was searched, the State does not argue that the suitcase was 'examined as part of a search incident to custodial arrest. Cf. United States v. Chadwick, 433 U. S., at 23, and n. 5 (dissenting opinion).

       The Court stated in Chambers, 399 U. S., at 51-52:
      “Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.”

       The opinion concurring in the judgment would distinguish between a case where there is probable cause to search the car and its contents as a whole, and a case where there is probable cause to search a particular item of luggage within the car. Ante, át 767-768. The opinion suggests, without deciding, that the automobile exception might apply in the former case, but not the latter. Surely, however, the intrusion on privacy, and consequently the need for the protection of the Warrant Clause, is, if anything, greater when the police search the entire interior area of the car, including possibly several suitcases, than when they confine their search to a single suitcase. Moreover, given the easy transferability of articles to and from luggage once it is placed in a vehicle, the police would be entitled to assume that if contraband was not found in the suspect suitcase, it would likely be secreted somewhere else in the car. The possibility the opinion concurring in the judgment would preserve for future decision thus contemplates the following two-step ritual: first, the police would take the targeted suitcase to the station for a search pursuant to a warrant; then, if the contraband was not discovered in the suitcase, they would return for a warrantless search of other luggage and compartments of the car. It does not require the adjudication of a future controversy to reject that result.


source: Caselaw Access Project

author: Mr. Justice Powell Mr. Justice Blackmun, Mr. Chief Justice Burger, Mr. Justice Brennan,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD et al. v. BAPTIST HOSPITAL, INC.
    No. 78-223.
    Argued April 23, 1979 —
    Decided June 20, 1979

      Powell, J., delivered the opinion of the Court, in which Stewart, BlackmuN, Rehnquist, and Stevens, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 791. Burger, C. J., filed an opinion concurring in the judgment, post, p. 791. Brennan, J., filed an opinion concurring in the judgment, in which White and Marshall, JJ., joined, post, p. 793.

      Norton /. Come argued the cause for petitioner National Labor Relations Board. With him on the brief were Solicitor General McCree, John S. Irving, Linda Sher, and David F. Zorensky. Laurence Gold argued the cause for intervenor Local 150-T Service Employees International Union. With him on the briefs were Lester Asher, J. Albert Woll, and George Kaufmann.

      Fred W. Elarbee argued the cause for respondent. With him on the brief was David M. Vaughan.

        Richard Dorn filed a brief for the National Union of Hospital and Health Care Employees as amicus curiae urging reversal.

        William Francis Ford and Samuel Dunbar Hewlett filed a brief for the Hospital Corporation of America as amicus curiae.

   Mr. Justice Powell

delivered the opinion of the Court.

This case presents the question of the validity of an order of the National Labor Relations Board (Board) prohibiting respondent, Baptist Hospital (Hospital), from enforcing any rule against solicitation by employees “on behalf of any labor organization during their nonworking time in any area of its hospital other than immediate patient care areas.”

I

The Hospital is a nonprofit general hospital with 600 beds and 1,800 employees. For several years prior to 1974, the Hospital enforced a rule against solicitation anywhere on its premises. The intervenor, Local 150-T, Service Employees International Union, AFL-CIO (Union), in August 1974 began a campaign to organize the Hospital’s employees. The Hospital, at least partly in response to this organizational activity, promulgated a new rule prohibiting solicitation by employees at all times “in any area of the Hospital which is accessible to or utilized by the public.” These areas include the lobbies, gift shop, cafeteria, and entrances on the first floor of the hospital as well as the corridors, sitting rooms, and public restrooms on the other floors. In parts of the Hospital not open to patients and their visitors, employee solicitation is allowed in work areas on nonwork time, and distributions are allowed in nonwork areas on nonwork time.

The Union filed charges with the'Board, which thereupon issued a complaint against the Hospital. The complaint focused primarily on the Hospital’s no-solicitation rule, charging that the broad proscriptions contained in the rule violated §8 (a)(1) of the National Labor Relations Act (Act), as amended, 29 U. S. C. §158 (a)(1). After hearing testimonial evidence introduced by both the Hospital and the General Counsel for the Board, the Administrative Law Judge concluded that the Hospital’s no-solicitation rule was invalid. Baptist Hospital, Inc., 223 N. L. R. B. 344, 347 (1976). The Board agreed, and issued an order that the Hospital cease and desist from “[promulgating, maintaining in effect, enforcing, or applying any rule or regulation prohibiting its employees from soliciting on behalf of any labor organization during their nonworking time in any area of its hospital other than immediate patient care areas.” Id., at 346.

The Board sought enforcement of its order by the Court of Appeals. After reviewing the evidence of record before the Board, the court concluded that the Hospital had presented evidence of the ill effects of solicitation on patient care that justified the broad prohibition of solicitation. The court accordingly denied enforcement of the Board’s order. 576 F. 2d 107 (CA6 1978). We granted the Board’s petition for cer-tiorari, 439 U. S. 1065 (1979), and now affirm in part and vacate and remand in part.

II

The Board, in implementing the 1974 extension of the Act to nonprofit health-care institutions, has modified its general rule regarding the validity of employer regulations of solicitation. Because its usual presumption that rules against solicitation on nonwork time are invalid gives too little weight to the need to avoid disruption of patient care and disturbance of patients in the hospital setting, the Board has indicated that it will not regard as presumptively invalid proscriptions on solicitation in immediate patient-care areas. In Beth Israel Hospital v. NLRB, 437 U. S. 483 (1978), the Court considered the general acceptability of the use of this presumption by the Board.

At issue in Beth Israel Hospital was that hospital’s rule against solicitation in its cafeteria and coffeeshop. The Court, in the course of affirming a decision of the Board that struck down the no-solicitation rule, described the Board’s general approach to such rules.

“The Board concluded that prohibiting solicitation in [immediate patient-care areas] was justified and required striking the balance against employees’ interests in organizational activity. The Board determined, however, that the balance should be struck against the prohibition in areas other than immediate patient-care areas such as lounges and cafeterias absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas.” Id., at 495.

The Court found no merit in Beth Israel’s argument that the Board’s use of such a presumption was inconsistent with the legislative intent underlying extension of the Act to nonprofit health-care institutions. The Congress has committed to the Board the task of striking the appropriate balance among the interests of hospital employees, patients, and employers, a role familiar to the Board in other contexts. Beth Israel Hospital v. NLRB, supra, at 496-497, 500-501; Hudgens v. NLRB, 424 U. S. 507, 521-523 (1976). And the balance struck by the Board — solicitation on nonwork time may be prohibited only where necessary to avoid disruption of patient care or disturbance of patients — is not inconsistent with the Act. Beth Israel Hospital v. NLRB, supra, at 497-500. Accordingly, the Court held “that the Board’s general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients, is consistent with the Act.” 437 U. S., at 507.

The scope of the Board’s presumption depends upon the definition of the phrase “immediate patient-care areas.” The Court had no occasion in Beth Israel to determine or review the limits of the Board’s definition. The attack on the no-solicitation rule at issue there focused entirely on the prohibition of solicitation in the cafeteria and coffeeshop, and the Board’s order was limited to a requirement that the hospital “[r]escind its written rule prohibiting distribution of union literature and union solicitation in its cafeteria and coffee-shop.” Beth Israel Hospital, 223 N. L. R. B. 1193, 1199 (1976) (emphasis added); see NLRB v. Beth Israel Hospital, 554 F. 2d 477, 482 (CA1 1977), aff’d, 437 U. S. 483 (1978). The Board’s definition of “immediate patient-care areas” is essential, however, to an understanding of both the operation of the presumption and the Board’s final order in the present case. The Hospital’s rule prohibits solicitation in all areas of the Hospital open to patients or visitors, and the complaint charged that the Hospital had violated § 8 (a)(1) by maintaining an overly broad rule against solicitation. 223 N. L. R. B., at 347, 355. The Board’s order covers all areas of the Hospital, and explicitly limits application of a no-solicitation rule to areas of “immediate patient care.”

Neither the Board nor the Administrative Law Judge mentioned in their respective opinions the exact scope that they assigned to the term “immediate patient-care areas.” But, as the Court of Appeals remarked, 576 F. 2d, at 109, the Board based its ruling on the analysis it had adopted in St. John’s Hospital & School of Nursing, Inc., 222 N. L. R. B. 1150 (1976), enf. granted in part and denied in part, 557 F. 2d 1368 (CA10 1977). See 223 N. L. R. B., at 344 n. 2. In St. John’s Hospital, the Board stated that immediate patient-care areas are areas “such as the patients’ rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas.” 222 N. L. R. B., at 1150.. Thus, it appears that in the present case the Board assumed the validity of prohibitions on solicitation only in these limited areas, treating any broader ban as presumptively invalid. And given this definition of patient-care areas, the Board’s order prevents the Hospital from applying a no-solicitation rule not only to its lobbies, cafeteria, and gift shop but also to the corridors and sitting rooms that adjoin or are accessible to patients’ rooms and operating and treatment rooms.

Ill

The Board’s presumption, of course, does no more than place on the Hospital the burden of proving, with respect to areas to which it applies, that union solicitation may adversely affect patients. Accordingly, in Beth Israel the Court described the Board’s presumption as a ban on the prohibition of solicitation in areas other than immediate patient-care areas “where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients.” 437 U. S., at 507; accord, id., at 495. The hospital in Beth Israel failed to introduce any evidence that the proscription of solicitation in its cafeteria and coffee-shop was necessary to prevent either disruption of patient care or disturbance of patients. The Court found that “patient use of the cafeteria [was] voluntary, random, and infrequent,” and considered it of “critical significance that only 1.56% of the cafeteria’s patrons are patients.” Id., at 502; see also id., at 508-509 (Blackmun, J., concurring in judgment); id., at 516-517 (Powell, J., concurring in judgment).

In the present case, in contrast, extensive evidence was offered, through the testimony of doctors and a hospital administrator, in justification of the no-solicitation rule. The Board, after applying its presumption to the evidence before it, concluded that the Hospital had failed to meet the burden placed upon it by the presumption. In doing so, the Board made a finding of fact that there was no demonstrated likelihood that solicitation outside of “immediate patient-care areas” would disrupt patient care or disturb patients. 223 N. L. R. B., at 357; 576 F. 2d, at 109.

Such findings are binding on the reviewing courts, but only if they are supported by “substantial evidence on the record considered as a whole.” Act, § 10 (e), 29 U. S. C. § 160 (e). When the Board’s findings lack such support in the record, the reviewing courts must set them aside, along with the orders of the Board that rest on those findings. Administrative Procedure Act, 5 U. S. C. § 706 (2) (E); Universal Camera Corp. v. NLRB, 340 U. S. 474, 490 (1951). The Court of Appeals, exercising its reviewing function, determined that the Board’s findings were contrary to the proof of record, which in its view provided adequate support for the application of the no-solicitation rule in all areas of the Hospital. We think that the correct position lies between those taken by the Board and the court below. While the Board’s holding with respect to some of the areas in dispute has substantial evi-dentiary support in the record, the Court of Appeals was justified in concluding that the Board lacked such support for its sweeping protection of solicitation in all but “immediate patient-care areas.”

The Hospital’s Vice President for Personnel Services, Yic-tory, testified that the no-solicitation rule was adopted because of concern about the ill effects of union organizational activity on patients. App. 5-6, 31. The general purpose of the rule, he indicated, is to protect the patients and their families from the disquiet that might result if they perceived that the Hospital’s staff had concerns other than the care of patients. Id., at 12, 13. The rule rests, in Victory’s words, on the Hospital’s experience: “we have found that anytime we do anything that lets a patient or their [sic] family see that we have our mind on anything but patient care, this is very disruptive to the patient and sometimes affects the patient’s ability to recover.” Id., at 12. The Hospital’s Chief of Medical Staff, Ricketson, echoed this rationale for proscription of solicitation in any area of the Hospital open to patients or their visitors, emphasizing that the “psychological attitudes [of patients] play a good part,” id., at 57, in determining the success of their treatment. See id., at 53, 57-58, 62. Another doctor, Birmingham, testified that because “[p]eople who are physically ill are more emotionally upset,” it is essential to create within the Hospital the tranquillity that is most conducive to their recovery. Id., at 43-44. The Court of Appeals laid great stress on this aspect of the evidence before the Board, stating that “[t]hese witnesses, two physicians and an experienced hospitál administrator, repeatedly referred to the necessity of creating and maintaining a tranquil atmosphere throughout the hospital for patients and visitors. The testimony of the medical witnesses related this requirement directly to the well-being of the patients. The witnesses made no distinction between areas of immediate patient care and other areas of the hospital.” 576 F. 2d, at 109-110.

The evidence concerning the corridors and sitting rooms adjoining or accessible to the patients’ rooms and treatment rooms on the upper floors of the Hospital provided more detailed illustration of the need for a no-solicitation rule applicable to those areas. Patients in the most critical and fragile conditions often move or are moved through these corridors, either en route to treatment in some other part of the Hospital or as part of their convalescence. App. 10, 24, 54, 64. The increased emphasis in modern hospitals on the mobility of patients as an important aspect of patient therapy is well known, and appears to be a part of patient care at the Hospital. Id., at 40-41, 54. Small public rooms or sitting areas on the patient-care floors, as well as the corridors themselves, provide places for patients to visit with family and friends, as well as for doctors to confer with patients’ families — often during times of crisis. Id., at 24, 40, 55-56. Nothing in the evidence before the Board provided any basis, with respect to those areas of the Hospital, for doubting the accuracy of the statements made by Ricketson and Birmingham that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery. Id., at 23, 39-40, 57-58, 62.

The Hospital also presented uncontradicted evidence that solicitation on nonwork time is allowed in other areas even-under the no-solicitation rule at issue here. These areas in-elude the 26 nurses’ stations and adjoining utility rooms located throughout the Hospital, two employee lounges, and the maintenance and laundry buildings. Id., at 8, 16, 25-26. Especially in view of our ruling upholding the Board’s position on the first-floor lobbies, gift shop, and cafeteria, the availability of these alternative locations for solicitation, though not dispositive, lends support to the validity of the Hospital’s ban on such activity in other areas of the Hospital. As the Court remarked in Beth Israel:

“[I]n the context of health-care facilities, the importance of the employer’s interest in protecting patients from disturbance cannot be gainsaid. While outside of the health-care context, the availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry ... , it may be that the importance of the employer’s interest here demands use of a more finely calibrated scale. For example, the availability of one part of a health-care facility for organizational activity might be regarded as a factor required to be considered in evaluating the permissibility of restrictions in other areas of the same facility.” 437 U. S., at 505.

We conclude that, with respect to the corridors and sitting rooms on patients’ floors, the Court of Appeals correctly determined that there was no substantial evidence of record to support the Board's holding that the Hospital had failed to justify its ban on solicitation in these areas.

The same may not be said, however, of the cafeteria, gift shop, and lobbies on the first floor of the Hospital. No evidence directly contradicting the professional judgments of Victory, Birmingham, and Ricketson as to the importance of a tranquil hospital atmosphere to successful patient care was presented to the Board. But when viewed as a whole, the evidence presented by the Hospital may be regarded fairly as insufficient to rebut the Board’s presumption that the needs of essential patient care do not require the banning of all solicitation in such areas. The Hospital presented no clear evidence of the frequency with which patients use the cafeteria and gift shop, or visit the lobbies on the first floor. See App. 11-13, 27, 36-38. It appears that patients normally remain on the floors of the Hospital above the first floor, with visits to the first floor only by some patients and then only occasionally. Id., at 20, 28, 35-36, 64. In fact, a patient must have special permission to leave the floor on which his room is located, as well as to take meals in the cafeteria. Id., at 54, 64; 223 N. L. R. B., at 348. From this evidence, one may conclude reasonably that only those patients who are judged fit to withstand the activities of the public areas on the first floor are allowed to visit those parts of the Hospital. Moreover, both Victory and Ricketson testified that at least some kinds of solicitation in public areas such as the cafeteria would be unlikely to have a significant adverse impact on patients or patient care. App. 10, 31-32, 62. It thus appears that there was substantial evidence in the record to support the Board’s conclusion that the Hospital had not justified the prohibition of union solicitation in the cafeteria, gift shop, and lobbies on the first floor of the Hospital.

IV

In addition to reviewing the sufficiency of the evidence in this case to support the Board’s findings and order, the Court of Appeals also adopted a broader rationale for refusing to enforce the order. “In the setting of a modern general hospital,” it stated, “it is difficult to define the areas of immediate patient care.” 576 F. 2d, at 110. Since patients visit many parts of such a hospital during their treatment and convalescence, activities anywhere in the public areas of the hospital may well affect their recovery. Thus, the Court of Appeals concluded, in effect, that the Board’s presumption that solicitation outside of immediate patient-care areas does not disrupt patient care or disturb patients is irrational, and that the Board should be required to prove that solicitation in any particular patient-access area will not interfere with patients’ treatment or convalescence.

It is, of course, settled law that a presumption adopted and applied by the Board must rest on a sound factual connection between the proved and inferred facts. As the Court stated in Republic Aviation Corp. v. NLRB, 324 U. S. 793, 804-805 (1945), “[l]ike a statutory presumption or one established by regulation, the validity [of the Board’s presumption regarding the permissibility of no-solicitation rules], perhaps in a varying degree, depends upon the rationality between what is proved and what is inferred.” More recently, in Beth Israel, the Court again recognized that the courts have the duty to review the Board’s presumptions both “for consistency with the Act, and for rationality.” 437 U. S., at 501.

We do not share the apparent view of the Court of Appeals that the Board’s presumption is irrational in all respects, since experience in cases such as Beth Israel and the present one makes clear that solicitation in at least some of the public areas of hospitals often will not adversely affect patient care or disturb patients. The evidence of record in this case and other similar cases does, however, cast serious doubt on a presumption as to hospitals so sweeping that it embraces solicitation in the corridors and sitting rooms on floors occupied by patients. Since the 1974 amendments to the Act, each hospital making the attempt has overcome the effect of the Board’s presumption as applied to such corridors and sitting rooms. The evidence by which the Hospital rebutted the presumption in the present case has been reviewed above. In Baylor University Medical Center v. NLRB, 188 U. S. App. D. C. 109, 578 F. 2d 351 (1978), vacated in part and remanded, 439 U. S. 9 (1978), the evidence demonstrating the need for the prohibition of solicitation in such areas was even more extensive.

“The importance of preventing crowding and disruption in the hospital corridors cannot be seriously debated. Experienced witnesses testified of the extent to which congestion in the corridors impedes the operation of the medical staff and annoys patients and visitors. Quick and unimpeded passage through the hallways was shown to be imperative to the efficient operation of the hospital and to the success of certain of its emergency services, such as the cardiac arrest unit. The hallways serve not only as passageways for patients, visitors, doctors, and medicine, but also as viewing rooms for the nursery and storerooms for a variety of hospital equipment which must be available at a moment’s notice. There was also testimony that a great deal of the physical therapy undertaken at :[the hospital] actually took place in the corridors, and that for many departments the corridors served as the only available waiting room.” 188 U. S. App. D. C., at 113-114, 578 F. 2d, at 355-356 (footnotes omitted).

After reviewing the record in St. John’s Hospital & School of Nursing, Inc. v. NLRB, 557 F. 2d 1368 (CA10 1977), the court there found that the Board’s presumption (first adopted in that case) was unsupported by any evidence that solicitation in such areas would not adversely affect patient care. It concluded that to save the Board’s presumption, “the Board’s definition of 'strictly patient care areas’ must be interpreted to include such areas as halls, stairways, elevators, and waiting rooms accessible to patients.” Id., at 1375.

Because the evidence presented by the Hospital in this case is sufficient to rebut the Board’s presumption as applied to corridors and sitting rooms on patients’ floors, we need not here decide the rationality of this portion of the Board’s presumption, or undertake the task of framing the limits of an appropriate presumption regarding the permissibility of union solicitation in a modern hospital. Indeed, the development of such presumptions is normally the function of the Board. It must be said, however, that the experience to date raises serious doubts as to whether the Board’s interpretation of its present presumption adequately takes into account the medical practices and methods of treatment incident to the delivery of patient-care services in a modern hospital. In its continuous review of the usefulness of its presumption, the Board should be mindful of the Court's admonition in Beth Israel.

‘[T]he Board [bears] a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.' ” 437 U. S., at 508, quoting NLRB v. Beth Israel Hospital, 554 F. 2d, at 481.

y

The Court of Appeals correctly concluded that the Board lacked substantial evidence in the record to support its order forbidding any prohibition on solicitation in the corridors and sitting rooms on floors of the Hospital housing either patients’ rooms or operating and therapy rooms, and we affirm that portion of its judgment. The judgment of the Court.of Appeals with respect to other parts of the Hospital is vacated, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Blackmun,

concurring.

I join the Court’s opinion and its judgment. I write only to underline what is plainly said in the opinion, ante, at 789-790, and n. 16, that these hospital cases so often turn on the proof presented. What may be true of one hospital’s gift shop and cafeteria may not be true of another’s. And I continue to have difficulty perceiving any rational distinction between the Board’s recognition that solicitation is inappropriate in a department store, see Beth Israel Hospital v. NLRB, 437 U. S. 483, 511-512, and nn. 2 and 3 (1978) (Powell, J., concurring in judgment); id., at 508 (concurring opinion), and its contrary presumption with respect to the retail shop (usually operated on a not-for-profit basis) and cafeteria in the hospital. The admonition contained in the last paragraph of n. 16 of the Court’s opinion, ante, at 790, cannot be overemphasized.

Mr. Chief Justice Burger,

concurring in the judgment.

I concur only in the judgment because I do not agree with the basis of the Court’s opinion. The Court accepts as valid the Board’s presumption that hospital rules prohibiting solicitation during nonworking time outside of “immediate patient-care areas” violate employees’ right to organize. The Court denies enforcement to the Board’s order in part on the ground that its finding that the Hospital failed to overcome this presumption was not supported by substantial evidence.

I would think no “evidence” is needed to establish the proposition that the primary mission of every hospital is care and concern for the patients and that anything which tends to interfere with that objective cannot be tolerated. A religious choir singing in a hospital chapel may well be desirable but if that interferes with patient care, it cannot be allowed.

To be supportable a presumption cannot rest on grounds which are irrational. Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978). For me, it is wholly irrational for the Board to create a presumption- that removes from the hospital absolute authority to control all activity in areas devoted primarily to patient care, including all areas frequented by patients. I would place the decision on the basis that: (1) the Board’s presumption is wholly invalid as applied to areas of a hospital devoted primarily to the care of patients; (2) once the Board’s order is deprived of the support of the presumption, it must be scrutinized to determine if it is supported by independent substantial evidence. That examination leads me to the conclusion that the Board’s order is not supported by substantial evidence with respect to any of the patient-care areas or public areas above the first floor of the Hospital.

In short the Board’s presumption is wholly invalid as applied to any area of the hospital devoted primarily to the care of patients for the reasons stated in Mr. Justice Powell’s opinion concurring in the judgment in Beth Israel Hospital, supra, at 510-514, which I joined. A hospital differs from a factory or industrial establishment. This is especially important in light of the Board’s presumption against' solicitation in the analogous public areas of restaurants and retail stores. Id., at 511-513.

Nothing in Beth Israel Hospital is to the contrary. There the Court stressed the necessity for continuing development and possible revision of the Board’s approach to hospital employees’ activities. Id., at 507-508. Moreover, Mr. Justice Brennan, speaking for the Court in that case, carefully explained that the particular cafeteria there was primarily an employee-service area, id., at 506, not a patient-care facility.

The inquiry then properly turns to whether the Board’s decision was supported by substantial evidence on the record as a whole. On the basis of the evidence described by the Court, ante, at 782-786, it seems clear to me that the decision of the Board was not supported by substantial evidence with respect to public areas above the first floor of the Hospital. The fundamental issue in cases such as this is whether the employees’ organizational rights affected by the hospital rules in question are superior to the hospital’s needs in carrying out its mission.

The central “business” of a hospital is not a business in the sense that term is generally used in industrial contexts. The hospital’s only purpose is the care and treatment of its patients, and I agree fully with the Court’s statement that “[n]othing in the evidence before the Board provided any basis ... for doubting the accuracy of the [testimony] that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery.” Ante, at 784. The union’s interest in membership solicitation in the public area of the Hospital above the first floor was severely undercut by the availability of abundant alternative areas for such union activity. Whatever doubts there may be as to the adverse effects on patients should be resolved in favor of their protection. I would not elevate the interests of unions or employees, whose highest duty is to patients, to a higher plane than that of the patients.

The evidence described by the Court, ante, at 786-787, demonstrates that the gift shop on the first floor is maintained primarily for the accommodation of visitors who wish to purchase articles for patients and is not a “patient-care” area; as in Beth Israel, supra, the first floor cafeteria is not a primarily patient-care area.

Mr. Justice Brennan,

with whom Mr. Justice White and Mr. Justice Marshall join,

concurring in the judgment.

In this case, the Court of Appeals for the Sixth Circuit found that respondent had demonstrated the special circumstances necessary to overcome the NLRB’s presumption against bans on solicitation, and that there was no substantial evidence to support the Board’s holding to the contrary. The scope of our review of such a Court of Appeals finding is narrowly circumscribed:

“ ‘Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.’ ” Beth Israel Hospital v. NLRB, 437 U. S. 483, 507 (1978), quoting Universal Camera Corp. v. NLRB, 340 U. S. 474, 491 (1951).

Because I believe that the Court of Appeals “misapprehended or grossly misapplied” the substantial-evidence rule with respect to the cafeteria, gift shop, and first-floor lobbies of Baptist Hospital, but that the .same cannot be said for the patient-floor corridors and sitting rooms, I concur in the judgment of the Court.

I

As the Court notes, “[t]he Hospital presented no clear evidence of the frequency with which patients use the cafeteria and gift shop, or visit the lobbies on the first floor,” ante, at 786. See App. 11-13, 27, 36-38. In fact, the evidence demonstrated that patients normally remain on floors above the first floor, id., at 20, 28, 35-36, 64; that they must have special permission to leave the floor on which their room is located, or to eat in the cafeteria, id., at 64; Baptist Hospital, Inc., 223 N. L. R. B. 344, 348 (1976); and that only a small number of patients actually use the cafeteria, App. 50, 64; 223 N. L. R. B., at 348. See generally, ante, at 786-787. Given such evidence, the Hospital could not have overcome the Board’s presumption against solicitation bans in nonimme-diate patient-care areas — that is, the Hospital could not have met its affirmative burden to demonstrate that the prohibition was “necessary to avoid disruption of health-care operations or disturbance of patients,” Beth Israel Hospital v. NLRB, supra, at 507. Since there clearly was substantial evidence to support the Board’s determination that the presumption was not overcome, the Court of Appeals’ holding to the contrary constituted a gross misapplication of the appropriate standard of review of Board findings.

The same Cannot be said of the Court of Appeals’ holding with respect to those corridors and sitting rooms which adjoin, or are accessible to, the patient and treatment rooms on the upper floors. There was evidence that “[p]atients in the most critical and fragile conditions often move or are moved through these corridors, either en route to treatment in some other part of the Hospital or as part of their convalescence,” ante, at 784. See App. 54, 64. Considerable additional evidence, including the testimony of two doctors, suggested that in this hospital, in these areas, a prohibition of solicitation was necessary to avoid disruption of health-care operations or disturbance of patients. See ante, at 782-784. This does not mean that were this Court reviewing the evidence de novo, or even were it applying the standard of review appropriate for the Court of Appeals, it would have been inexorably driven to conclude that the presumption against no-solicitation rules was adequately overcome. But we do not sit as a court of first, or even second, instance. We cannot overturn the Court of Appeals’ decision as to the substantiality of the evidence unless it misapprehended or grossly misapplied the appropriate standard of review. And given the evidence presented on the questions concerning the upper floors of the hospital, I cannot say that the appellate court so erred here.

II

Both this opinion, and that of the Court, base their dispositions of the Board’s petition upon the evidence presented in this case; neither rejects the legality of the presumption which the Board applied. See ante, at 789. In dicta, however, the Court questions the application of the presumption to the corridors and sitting rooms of floors occupied by patients. See ante, at 788-789. I do not share these sentiments.

“[T]he development of . . . presumptions is normally the function of the Board,” ante, at 789, and its conclusions on such matters are traditionally accorded considerable deference. See NLRB v. Iron Workers, 434 U. S. 335, 350 (1978); NLRB v. Weingarten, Inc., 420 U. S. 251, 266-267 (1975). Beth Israel Hospital v. NLRB, supra, at 500-501, made it clear that Board decisions in the health-care area are no exception to this rule. Although it is true that hospitals “give rise to unique considerations that do not apply in . . . industrial settings,” and that the Board should therefore “stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized,” ante, at 790, quoting Beth Israel Hospital v. NLRB, supra, at 508, it is also true that the Board has shown itself to be sensitive to the difference between the hospital and the industrial workplace. Indeed, the very presumption at issue in this case reflects that sensitivity. As the Court itself notes:

“Because its usual presumption that rules against solicitation on nonwork time are invalid gives too little weight to the need to avoid disruption of patient care and disturbance of patients in the hospital setting, the Board has indicated that it will not regard as presumptively invalid proscriptions on solicitation in immediate patient-care areas.” Ante, at 778.

Judges, like most of the rest of the public, experience hospitals solely as patients. It is the Board, by contrast, which confronts every day the complexities of labor relations policy in the health-care area. And it is for that reason “that the 1974 amendments vested responsibility” in the Board “for developing that policy in the health-care industry.” Beth Israel Hospital v. NLRB, 437 U. S., at 501. As we explained in Beth Israel:

“Here, as in many other contexts of labor policy, £[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’ . . . The judicial role is narrow: The rule which the Board adopts is.judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board’s application of the rule, if supported by substantial evidence on the record as a whole, must be enforced.” Ibid.

At this stage, I do not believe there is any warrant for second-guessing the Board’s handling of its “difficult and delicate responsibility” in this sensitive area of labor-management relations.

         The rule read:
      “In order to protect employees from any form of solicitation, raffle, charity drives, etc., it is strictly prohibited for anyone to solicit patients or visitors while on hospital premises without written approval from Administration. Violation of this policy will subject employee to disciplinary action. Employees who discover persons making unauthorized solicitation should report this immediately to their Supervisor.”
      This rule was adopted primarily to keep salesmen out of the Hospital. Baptist Hospital, Inc., 223 N. L. R. B. 344, 348, 357 (1976), enf. granted in part and denied in part, 576 F. 2d 107 (CA6 1978).

       The new rule governing solicitation in the Hospital provides:
      “No solicitations of any kind, including solicitations for memberships or subscriptions, will be permitted by employees at any time, including work time and non-work time in any area of the Hospital which is accessible to or utilized by the public. Anyone who does so will be subject to disciplinary action. In those work areas of the Hospital not accessible to or utilized by the public, no solicitations of any kind, including solicitations for memberships or subscriptions will be permitted at any time by employees who are supposed to be working, or in such a way as to interfere with the work of other employees who are supposed to be working. Anyone who does so and thereby neglects his work or interferes with the work of others will likewise be subject to disciplinary action.
      “No distributions of any kind, including circulars or other printed materials, shall be permitted in any work area at any time.”
      All of the parties agree that the restrictions on solicitation and distribution imposed with respect to areas of the Hospital not accessible to patients and the public are in conformity with existing law.

       Section 8 (a)(1), as set forth in 29 U. S. C. § 158 (a) (1), makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights [of self-organization and collective bargaining] guaranteed in section 157 of [Title 29].”
      The complaint also charged that the Hospital had violated § 8 (a) (3) of the Act, 29 U. S. C. § 158 (a) (3), by discriminating against an employee, Russell French, on account of his union organizational activities. The Board sustained this charge, ordering the Hospital to reinstate French and pay him any wages lost because of such discrimination. French died before the decision of the case in the Court of Appeals, leaving only the issue of backpay. The Court of Appeals, after concluding that the Hospital’s no-solieitation rule did not violate § 8 (a) (1), remanded to the Board for a determination of what portions of the backpay previously ordered were unrelated to the Hospital’s no-solicitation rule. 576 F. 2d, at 111. Neither the Board nor the Hospital has questioned this disposition of the § 8 (a) (3) claim.

       Section 1 (a) of the Board’s order; see 223 N. L. R. B., at 346. In § 2 (b) of its order, the Board also directed the Hospital to rescind its existing no-solicitation rule “to the extent that it prohibits its employees from soliciting on behalf of a labor organization during their nonworking time in any nonworking area of the Hospital including those areas open to the public.” 223 N. L. R. B., at 346, 361.

       The court also noted that the proscription of solicitation and distribution did not extend to the Hospital’s parking lots. “[I]n denying enforcement of the Board’s order we construe the hospital’s . . . rule to apply only to areas within the various buildings occupied by the hospital and those exterior areas immediately adjacent to entrances used by patients and the public.” 576 F. 2d, at 111. This conclusion comports with the testimony given at the administrative hearing on the Board’s complaint. App. 34, 45, 63.

       Act of July 26, 1974, 88 Stat. 395; see Beth Israel Hospital v. NLRB, 437 U. S. 483, 485, and n. 1 (1978).

        Republic Aviation Corp. v. NLRB, 324 U. S. 793, 803-804, and n. 10 (1945).

       The Board first announced this modification of the presumption in St. John’s Hospital & School of Nursing, Inc., 222 N. L. R. B. 1150 (1976), enf. granted in part and denied in part, 557 F. 2d 1368 (CA10 1977). The Board has applied its modified presumption in a number of subsequent cases involving union organizational activities in hospitals, including, in addition to the present case, Beth Israel Hospital, 223 N. L. R. B. 1193 (1976), enf'd, 554 F. 2d 477 (CA1 1977), aff’d, 437 U. S. 483 (1978); Lutheran Hospital of Milwaukee, 224 N. L. R. B. 176 (1976), enf. granted in part and denied in part, 564 F. 2d 208 (CA7 1977), vacated and remanded, 438 U. S. 902 (1978); Baylor University Medical Center, 225 N. L. R. B. 771 (1976), enf. granted in part and denied in part, 188 U. S. App. D. C. 109, 578 F. 2d 351, vacated in part and remanded, 439 U. S. 9 (1978); St. Joseph Hospital, 228 N. L. R. B. 158 (1977).

       The order recommended by the ALJ was phrased in terms of “nonworking areas” (Hospital forbidden to interfere with solicitation on nonworking time in “nonworking areas”)., but the Board substituted an order prohibiting interference with solicitation on nonwork time in areas other than those 'for “immediate patient care.” 223 N. L. R. B., at 346, 361.

       Although the Board has never published a more definite list of “immediate patient-care areas” than the one included in St. John’s Hospital & School of Nursing, Inc., nothing in its subsequent opinions has suggested that the Board views areas other than patients’ rooms, operating rooms, and treatment rooms as areas of immediate patient care. In Baylor University Medical Center v. NLRB, 188 U. S. App. D. C., at 110-111, 578 F. 2d, at 352-353, for example, the corridors of the hospital as well as its cafeteria were excluded by the Board from “immediate patient-care areas.”

       The Court’s restatement of the Board’s presumption makes it clear that a hospital may overcome the presumption by showing that solicitation is likely either to disrupt patient care or disturb patients. The distinction is an important one. Solicitation may disrupt patient care if it interferes with the health-care activities of doctors, nurses, and staff, even though not conducted in the presence of patients. And solicitation that does not impede the efforts of those charged with the responsibility of caring for patients nonetheless may disturb patients exposed to it.

       Mr. Justice Blackmun has commented perceptively on the importance of maintaining a peaceful and relaxed atmosphere within hospitals. “Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day’s activity, and where the patient and his family — irrespective of whether that patient and that family are labor or management oriented — need a restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace in addition to the tensions of the sick bed.” Beth Israel Hospital v. NLRB, 437 U. S., at 509 (concurring in judgment).

       Although the elevators and stairways in every hospital also are used by patients moving and being moved to and from various treatment areas, the Hospital presented no specific evidence regarding these areas, and the Board made no specific finding as to them.

       The Hospital exempts nurses’ stations from the ban on solicitation in areas that are accessible to patients and visitors, but does subject them to the prohibition against solicitation in work areas on working time. Jtpp. 18-19, 25. The Hospital’s acceptance of solicitation in nurses’ stations during employees’ nonworking time appears to rest on the partition of these stations from surrounding areas open to patients, and on the use of the stations by employees on breaks from work. Id., at 25-26. It may well be that in other hospitals, solicitation in these critical areas would threaten to disturb patients or disrupt patient care, since there are always some employees on duty there.

       The courts of appeals are required to review the substantiality of evidence to support the Board's findings “on the record considered as a whole,” 29 U. S. C. § 160 (e) (emphasis added). Here, it appears that the Court of Appeals failed to give appropriate weight to the evidence favorable to the Board regarding the cafeteria, gift shop, and lobbies.

       The Board, in reviewing the scope and application of its presumption, should take into account that a modern hospital houses a complex array of facilities and techniques for patient care and therapy that defy simple classification. Patients not undergoing treatment at the moment are cared for in a variety of settings — recovery rooms, intensive-care units, patients’ rooms, wards, sitting rooms, and even the corridors, where patients often are encouraged to walk, or to visit with their families. In different hospitals, the use and physical layout of such a variety of areas may require varying resolutions of questions about the validity of bans on union solicitation. In addition, outpatient clinics such as the Hospital’s emergency room and “shortstay” unit, App. 28, 35, may raise special considerations because of the nature of the services rendered to patients there.
      Some corridors in some hospitals, as well as elevators and stairways, may be used neither for treatment nor for care, but may be of great importance in the movement of patients (and emergency equipment) through the hospital. Id., at 54; see Baylor University Medical Center v. NLRB, 188 U. S. App. D. C., at 113-114, 578 F. 2d, at 355-356. Still another group of areas, including cafeterias and gift shops, also may present difficult problems regarding the validity of no-solicitation rules. As MR. Justice BlacicmuN noted in his opinion concurring in the judgment in Beth Israel, “[t]here are many hospital coffeeshops and cafeterias that are primarily patient and patient-relative oriented, despite the presence of employee patrons.” 437 U. S., at 509.
      In discharging its responsibility for administration of the Act, the Board must frame its rules and administer them with careful attention to the wide variety of activities within the modem hospital. The Union, and other labor organizations involved before the Board in cases similar to the present one, have adopted this view, urging the Board to abandon the simplistic “immediate patient care” criterion. See Brief for Intervenor 38-42.

      The Court of Appeals’ misapplication of the standard of review of evidence may have been partially due to its misapprehension of the legal merits of the Board’s presumption as applied to cafeterias. Although the court based its holding primarily upon a factual finding that the Hospital “did carry its burden in the present case” to establish the circumstances justifying a ban on solicitation, it also questioned the legal distinction which the Board makes between hospital cafeterias and public restaurants. See 576 F. 2d 107, 110 (1978). The Court of Appeals noted that the Board’s insistence upon applying the presumption to the former, while not applying it to the latter, was rejected by the Court of Appeals for the District of Columbia Circuit in Baylor University Medical Center v. NLRB, 188 U. S. App. D. C. 109, 578 F. 2d 351 (1978).
      Subsequent to the Court of Appeals decision below, we upheld the NLRB’s distinction between public and hospital cafeterias, Beth Israel Hospital v. NLRB, 437 U. S., at 505-507, and vacated the decision of the Court of Appeals for the District of Columbia Circuit on that question. See NLRB v. Baylor University Medical Center, 439 U. S. 9 (1978). It may well be that had the court below had the benefit of our decision in Beth Israel, it might have viewed more favorably the Board’s findings concerning Baptist Hospital’s cafeteria.


text:
    May 24, 1979
    No. A-1016.
    Spenkelink v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida, et al.
   C. A. 5th Cir. Application for stay of execution, presented to Mr. Justice Marshall, and by him referred to the Court, denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant the application for a stay of execution. Furthermore, they object because the Court announces its action without first affording them an opportunity to prepare, circulate, and file a statement in support of their view.


text:
    No. A-1017.
    Filartiga et al. v. Pena-Irala et al.
   D. C. E. D. N. Y. Application for stay of deportation, presented to Mr. Justice Marshall, and by him referred to the Court, denied.