author: Me. Justice Rehnquist Mr. Chief Justice Burger,

text:
    UNITED STATES v. CECCOLINI
    No. 76-1151.
    Argued December 5, 1977
    Decided March 21, 1978

      Rehnquist, J., delivered the opinion of the Court, in which Stewart, White, Powell, and Stevens, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 280. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 285. Blackmun, J., took no part in the consideration or decision of the case.

      Richard A. Alim ar'gued the cause for the United States. With him. on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Frey, and Sidney M. Glaser.

      Leon J. Greenspan argued the cause and filed a brief for respondent.
   Me. Justice Rehnquist

delivered the opinion of the Court.

In December 1974, Ronald Biro, a uniformed police officer on assignment to patrol school crossings, entered respondent’s place of business, the Sleepy Hollow Flower Shop, in North Tarrytown, N. Y. He went behind the customer counter and, in the words of Ichabod Crane, one of Tarrytown’s more illustrious inhabitants of days gone past, “tarried,” spending his short break engaged in conversation with his friend Lois Hennessey, an employee of the shop. During the course of the conversation he noticed an envelope with money sticking out of it lying on the drawer of the cash register behind the counter. Biro picked up the envelope and, upon examining its contents, discovered that it contained not only money but policy slips. He placed the envelope back on the register, and, without telling Hennessey what he had seen, asked her to whom the envelope belonged. She replied that the envelope belonged to respondent Ceccolini, and that he had instructed her to give it to someone.

The next day, Officer Biro mentioned his discovery to North Tarrytown detectives who in turn told Lance Emory, an FBI agent. This very ordinary incident in the lives of Biro and Hennessey requires us, over three years later, to decide whether Hennessey’s testimony against respondent Ceccolini should have been suppressed in his trial for perjury. Respondent was charged with that offense because he denied that he knew anything of, or was in any way involved with, gambling operations. Respondent was found guilty after a bench trial in the United States District Court for the Southern District of New York, but immediately after the finding of guilt the District Court granted respondent’s motion to “suppress” the testimony of Hennessey because the court concluded that the testimony was a “fruit of the poisonous tree”; assuming respondent’s motion for a directed verdict included a motion to set aside the verdict of guilty, the District Court granted the motion because it concluded that without Hennessey’s testimony there was insufficient evidence of respondent’s guilt. The Government appealed these rulings to the Court of Appeals for the Second Circuit.

That court rightly concluded that the Government was entitled to appeal both the order granting the motion to suppress and the order setting aside the verdict of guilty, since further proceedings if the Government were successful on the appeal would not be barred by the Double Jeopardy Clause. 542 F. 2d 136, 139-140 (1976). The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt. United States v. Morrison, 429 U. S. 1 (1976); United States v. Wilson, 420 U. S. 332, 352-353 (1975).

The Government, however, was not successful on the merits of its appeal; the Court of Appeals by a divided vote affirmed the District Court’s suppression ruling. 542 F. 2d, at 140-142. We granted certiorari to consider the correctness of this ruling of the Court of Appeals. 431 U. S. 903 (1977).

I

During the latter part of 1973, the Federal Bureau of Investigation was exploring suspected gambling operations in North Tarry town. Among the establishments under surveillance was respondent’s place of business, which was a frequent and regular stop of one Francis Millow, himself a suspect in the investigation. While the investigation continued on a reduced scale after December 1973, surveillance of the flower shop was curtailed at that time. It was thus a full year after this discontinuance of FBI surveillance that Biro spent his patrol break behind the counter with Hennessey. When Biro’s discovery of the policy slips was reported the following day to Emory, Emory was not fully informed of the manner in which Biro had obtained the information. Four months later, Emory interviewed Hennessey at her home for about half an hour in the presence of her mother and two sisters. He identified himself, indicated that he had learned through the local police department that she worked for respondent, and told her that the Government would appreciate any information regarding respondent’s activities that she had acquired in the shop. Emory did not specifically refer to the incident involving Officer Biro. Hennessey told Emory that she was studying police science in college and would be willing to help. She then related the events which had occurred during her visit with Officer Biro.

In May 1975, respondent was summoned before a federal grand jury where he testified that he had never taken policy bets for Francis Millow at the flower shop. The next week Hennessey testified to the contrary, and shortly thereafter respondent was indicted for perjury. Respondent waived a jury, and with the consent of all parties the District Court considered simultaneously with the trial on the merits respondent’s motion to suppress both the policy slips and the testimony of Hennessey. At the conclusion of the evidence, the District Court excluded from its consideration “the envelope and the contents of the envelope,” but nonetheless found respondent guilty of the offense charged. The court then, as previously described, granted respondent’s motion to suppress the testimony of Hennessey, because she “first came directly to the attention of the government as a result of an illegal search” and the Government had not “sustained its burden of showing that Lois Henness[e]y’s testimony definitely would have been obtained without the illegal search.” App. to Pet. for Cert. 28a-29a.

The Court of Appeals affirmed this ruling on the Government’s appeal, reasoning that “the road to Miss Henness[e]y’s testimony from Officer Biro’s concededly unconstitutional search is both straight and uninterrupted.” 542 F. 2d, at 142. The Court of Appeals also concluded that there was support in the record for the District Court’s finding that the ongoing investigation would not have inevitably led to the evidence in question without Biro’s discovery of the two policy slips. Id., at 141. Because of our traditional deference to the “two court rule,” Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275 (1949), and the fact that the Government has not sought review of this latter ruling, we leave undisturbed this part of the Court of Appeals’ decision. Because we decide that the Court of Appeals was wrong in concluding that there was insufficient attenuation between Officer Biro’s search and Hennessey’s testimony at the trial, we also do not reach the Government’s contention that the exclusionary rule should not be applied when the evidence derived from the search is being used to prove a subsequent crime such as perjury.

II

The “road” to which the Court of Appeals analogized the train of events from Biro’s discovery of the policy slips to Hennessey’s testimony at respondent’s trial for perjury is one of literally thousands of such roads traveled periodically between an original investigative discovery and the ultimate trial of the accused. The constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States, 371 U. S. 471 (1963), as whether “the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.’ ” Id., at 487, 491. The question was in turn derived from the Court’s earlier decision in Nardone v. United States, 308 U. S. 338, 341 (1939), where Mr. Justice Frankfurter stated for the Court:

''Here, as in the Silverthorne case [Silverthorne Lumber Co. v. United States], the facts improperly obtained do not 'become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it’ simply because it is used derivatively. 251 U. S. 385, 392.
''In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.”

This, of course, makes it perfectly clear, if indeed ever there was any doubt about the matter, that the question of causal connection in this setting, as in so many other questions with which the law concerns itself, is not to be determined solely through the sort of analysis which would be applicable in the physical sciences. The issue cannot be decided on the basis of causation in the logical sense alone, but necessarily includes other elements as well. And our cases subsequent to Nardone, supra, have laid out the fundamental tenets of the exclusionary rule, from which the elements that are relevant to the causal inquiry can be divined.

An examination of these cases leads us to reject the Government’s suggestion that we adopt what would in practice amount to a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it and a violation of the Fourth Amendment. We also reaffirm the holding of Wong Sun, supra, at 485, that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the 'fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” We are of the view, however, that cases decided since Wong Sun significantly qualify its further observation that “the policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence.” 371 U. S., at 486. Rather, at least in a case such as this, where not only was the alleged “fruit of the poisonous tree” the testimony of a live witness, but unlike Wong Sun the witness was not a putative defendant, an examination of our cases persuades us that the Court of Appeals was simply wrong in concluding that if the road were uninterrupted, its length was immaterial. Its length, we hold, is material, as are certain other factors enumerated below to which the court gave insufficient weight.

In Stone v. Powell, 428 U. S. 465, 486 (1976), we observed that “despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Recognizing not only the benefits but the costs, which are often substantial, of the exclusionary rule, we have said that “application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,” United States v. Calandra, 414 U. S. 338, 348 (1974). In that case, we refused to require that illegally seized evidence be excluded from presentation to a grand jury. We have likewise declined to prohibit the use of such evidence for the purpose of impeaching a defendant who testifies in his own behalf. Walder v. United States, 347 U. S. 62 (1954).

We have limited the standing requirement in the exclusionary rule context because the “additional benefits of extending the . . . rule” to persons other than the ones subject to the illegal search are outweighed by the “further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.” Alderman v. United States, 394 U. S. 165, 174-75 (1969). Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a “per se or ‘but for’ rule” that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590, 603 (1975).

Evaluating the standards for application of the exclusionary rule to live-witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the'exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, Wong Sun, supra, at 491; Brown v. Illinois, supra, and a fortiori is true of testimony given by nondefendants.

The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.

“The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.” Smith v. United States, 117 U. S. App. D. C. 1, 3-4, 324 F. 2d 879, 881-882 (1963) (Burger, J.) (footnotes omitted), cert. denied, 377 U. S. 954 (1964).

Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses — even putative defendants — from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, “serious obstructions to the ascertainment of truth”; accordingly, “[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions.” C. McCormick, Law of Evidence § 71 (1954). Alluding to the enormous cost engendered by such a permanent disability in an analogous context, we have specifically refused to hold that “making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” United States v. Bayer, 331 U. S. 532, 541 (1947). For many of these same reasons, the Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant’s statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U. S. 433, 450-451 (1974).

“For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. . . . Here respondent’s own statement, which might have helped the prosecution show respondent’s guilty conscience at trial, had already been excised from the prosecution’s case pursuant to this Court’s Johnson [v. New Jersey, 384 U. S. 719 (1966) ] decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.”

In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.

This is not to say, of course, that live-witness testimony is always or even usually more reliable or dependable than inanimate evidence. Indeed, just the opposite may be true. But a determination that the discovery of certain evidence is sufficiently unrelated to or independent of the constitutional violation to permit its introduction at trial is not a determination which rests on the comparative reliability of that evidence. Attenuation analysis, appropriately concerned with the differences between live-witness testimony and inanimate evideuce, can consistently focus on the factors enumerated above with respect to the former, but on different factors with respect to the latter.

In holding that considerations relating to the exclusionary rule and the constitutional principles which it is designed to protect must play a factor in the attenuation analysis, we do no more than reaffirm an observation made by this Court half a century ago:

“A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule.” McGuire v. United States, 273 U. S. 95, 99 (1927).

The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.

Ill

Viewing this case in the light of the principles just discussed, we hold that the Court of Appeals erred in holding that the degree of attenuation was not sufficient to dissipate the connection between the illegality and the testimony. The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the -latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro’s discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent were well known to those investigating the case. There is, in addition, not the slightest evidence to suggest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.

Obviously no mathematical weight can be assigned to any of the factors which we have discussed, but just as obviously they all point to the conclusion that the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. The judgment of the Court of Appeals is accordingly

Reversed.

Me. Justice Blackmukt took no part in the consideration or decision of this case.

Mr. Chief Justice Burger,

concurring in the judgment.

I agree with the Court's ultimate conclusion that there is a fundamental difference, for purposes of the exclusionary rule, between live-witness testimony and other types of evidence. I perceive this distinction to be so' fundamental, however, that I would not prevent a factfinder from hearing and considering the relevant statements of any witness, except perhaps under the most remarkable of circumstances — although none such have ever been postulated that would lead me to exclude the testimony of a live witness.

To appreciate this position,, it is essential to bear in mind the purported justification for employing the exclusionary rule in a Fourth Amendment context: deterrence of official misconduct. See Stone v. Powell, 428 U. S. 465, 486 (1976); United States v. Janis, 428 U. S. 433, 458-459, n. 35 (1976). As an abstract intellectual proposition this can be buttressed by a plausible rationale since there is at least some comprehensible connection — albeit largely and dubiously speculative — between the exclusion of evidence and the deterrence of intentional illegality on the part of a police officer. But if that is the purpose of the rule, it seems to me that the appropriate inquiry in every case in which a defendant seeks the exclusion of otherwise admissible and reliable evidence is whether official conduct in reality will be measurably altered by taking such a course.

On the facts of this case the Court is, of course, correct in holding that the “[application of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro.” Ante, at 280. Reaching this result, however, requires no judicial excursion into an area about which “philosophers have been able to argue endlessly,” namely, the degree of “free will” excercised by a person when engaging in an act such as speaking.

In the history of ideas many thinkers have maintained with persuasion that there is no such thing as “free will,” in the sense that the term implies the independent ability of an actor to regulate his or her conduct. Others have steadfastly maintained the opposite, arguing that the human personality is one innately free to choose among alternatives. Still a third group would deny that the very term “free will” has coherent meaning. These are only a few of the many perspectives on a subject which lies at the core of our intellectual and religious heritage. While this ancient debate will undoubtedly continue, “society and the law have no choice in the matter. We must proceed ... on the scientifically unprovable assumption that human beings make choices in the regulation of their conduct and that they are influenced by society’s standards as well as by personal standards.” Blocker v. United States, 110 U. S. App. D. C. 41, 53, 288 F. 2d 853, 865 (1961) (Burger, J., concurring in result). Mr. Justice Jackson expressed this in Gregg Cartage & Storage Co. v. United States, 316 U. S. 74, 80 (1942): “[T]he practical business of government and administration of the law is obliged to proceed on more or less rough and ready judgments based on the assumption that mature and rational persons are in control of their own conduct.” And in Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937), Mr. Justice Cardozo put it thus: “Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems.”

We are nonetheless cognizant of the fact that this assumption must continually confront the inherent practical obstacle of one person’s being unable to know with certainty the content of another’s mind. We cross this barrier daily, of course, in the process of determining criminal culpability. Yet in criminal trials we are willing to bear the risk of error — substantially diminished by the requirement of proof beyond a reasonable doubt — in order to effectuate the common-law tradition of imposing punishment only upon those who can be said to be morally responsible for their acts. There is no analogue to this concern, however, in the area of Fourth Amendment exclusion, which has an admitted pragmatic purpose — based as I suggested on speculative hypotheses which ought to lead us to apply it with reasoned discrimination, not as an automatic response. In short, the results achieved from current exclusionary rule standards are bizarre enough without steering the analysis in the direction of areas which offer no reasonable hope of a comprehensible framework for inquiry.

It would be obvious nonsense to postulate that during his brief encounter in the florist shop Officer Biro was making a painstaking analysis of the extent to which Lois Hennessey’s “free will” would affect her disposition to testify against respondent at some future point. It is one thing to engage in scholastic hindsight, particularly as the dissent has done here, in which speculation proceeds from unfounded hypotheses as to the probable explanations for the decision of a live witness to come forward and testify. But it is quite another to suppose that the police officer, assuming he is contemplating illegal action, will, or would be able to, engage in a similar inquiry.

There are several reasons which support this analysis, which, I might add, is found acceptable in every other legal system in the world. Initially, I would point out that the concept of effective deterrence assumes that the police officer consciously realizes the probable consequences of a presumably impermissible course of conduct. The officer must be cognizant of at least the possibility that his actions — because of possible suppression — will undermine the chances of convicting a known criminal. I strongly suspect that in the vast majority of instances in this setting the officer accused of a Fourth Amendment violation will not be even remotely aware of the existence of a witness, as for example, where seizure of an item of evidence guides official inquiry to an eyewitness. Of course, an officer conducting a search later held illegal may have some hope that his inquiry will lead to persons who can come forward with testimony. It is not plausible, however, that a police officer would consciously engage in illegal action simply to gain access to a witness, knowing full well that under prevailing legal doctrine the result will be the certain exclusion of whatever tangible evidence might be found.

Even if we suppose that the officer suspects that his illegal actions will produce a lead to a witness, he faces the intractable problem of understanding how valuable that person will be to his investigation. As one philosopher has aptly stated the matter, “[t]he freedom of the will consists in the impossibility of knowing actions that still lie in the future.” L. Wittgenstein, Tractatus Logico-Philosophicus ¶ 5.1362 (Pears & McGuinness trans. 1961). In Smith v. United States, 117 U. S. App. D. C. 1, 3-4, 324 F. 2d 879, 881-882 (1963), cert. denied, 377 U. S. 954 (1964), this point was applied to the case of a live witness testifying under oath:

“The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality wffiose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a [living] witness from the relative immutability of inanimate evidence.” (Emphasis added.) (Footnotes omitted.)

It can, of course, be argued, that the prospect of finding a helpful witness may play some role in a policeman’s decision to be indifferent about Fourth Amendment procedures. The answer to this point, however, is that we have never insisted on employing the exclusionary rule whenever there is some possibility, no matter how remote, of deterring police misconduct. Rather, we balance the cost to society of losing perfectly competent evidence against the prospect of incrementally enhancing Fourth Amendment values. See, e. g., Stone, 428 U. S., at 486; United States v. Calandra, 414 U. S. 338, 350-351 (1974); Alderman v. United States, 394 U. S. 165, 174-175 (1969).

Using this approach it strikes me as evident that the permanent silencing of a witness — who, after all, is appearing under oath — is not worth the high price the exclusionary rule exacts. Any rule of law which operates to keep an eyewitness to a crime — a murder, for example — from telling the jury what that person saw has a rational basis roughly comparable to the primitive rituals of human sacrifice.

I would, therefore, resolve the case of a living witness on a per se basis, holding that such testimony is always admissible, provided it meets all other traditional evidentiary requirements. At very least this solution would alleviate the burden — now squarely thrust upon courts — of determining in each instance whether the witness possessed that elusive quality characterized by the term “free will.”

Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting.

While “reaffirm [ing]” the holding of Wong Sun v. United States, 371 U. S. 471, 485 (1963), that verbal evidence, like physical evidence, may be “fruit of the poisonous tree,” the Court today “significantly qualifies]” Wong Sun’s further conclusion, id., at 486, that no “ 'logical distinction’ ” can be drawn between verbal and physical evidence for purposes of the exclusionary rule. Ante, at 275. In my view, the distinction that the Court attempts to draw cannot withstand close analysis. To extend “a time-worn metaphor,” Harrison v. United States, 392 U. S. 219, 222 (1968), I do not believe that the same tree, having its roots in an unconstitutional search or seizure, can bear two different kinds of fruit, with one kind less susceptible than the other of exclusion on Fourth Amendment grounds. I therefore dissent.

The Court correctly states the question before us: whether the connection between the police officer’s concededly unconstitutional search and Hennessey’s disputed testimony was “so attenuated as to dissipate the taint,” Nardone v. United States, 308 U. S. 338, 341 (1939). See ante, at 274. In resolving questions of attenuation, courts typically scrutinize the facts of the individual case, with particular attention to such matters as the “temporal proximity” of the official illegality and the discovery of the evidence, “the presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U. S. 590, 603-604 (1975). The Court retains this general framework, but states that “[a]ttenuation analysis” should be “concerned with the differences between live-witness testimony and inanimate evidence.” Ante, at 278-279. The differences noted by the Court, however, have to a large extent already been accommodated by current doctrine. Where they have not been so accommodated, it is because the differences asserted are either illusory or of no relevance to the issue of attenuation.

One difference mentioned by the Court is that witnesses, unlike inanimate objects, “can, and often do, come forward and offer evidence entirely of their own volition.” Ante, at 276. Recognition of this obvious fact does nothing to advance the attenuation inquiry. We long ago held that, if knowledge of evidence is gained from a source independent of police illegality, the evidence should be admitted. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920) (Holmes, J.). This “independent source” rule would plainly apply to a witness whose identity is discovered in an illegal search but who later comes to the police for reasons unrelated to the official misconduct. In the instant case, however, as the Court recognizes, ante, at 273, there is a “ 'straight and uninterrupted' ” road between the illegal search and the disputed testimony.

Even where the road is uninterrupted, in some cases the Government may be able to show that the illegally discovered evidence would inevitably have come to light in the normal course of a legal police investigation. Assuming such evidence is admissible — a proposition that has been questioned, Fitzpatrick v. New York, 414 U. S. 1050 (1973) (White, J., dissenting from denial of certiorari) — this “inevitable discovery” rule would apply to admit the testimony of a witness who, in the absence of police misconduct, would have come forward “entirely of [his or her] own volition.” Again, however, no such situation is presented by this case, since the Court accepts the findings of the two lower courts that Hennessey's testimony would not inevitably have been discovered. Ante, at 273.

Both the independent-source and inevitable-discovery rules, moreover, can apply to physical evidence as well as to verbal evidence. The police may show, for example, that they learned from an independent source, or would inevitably have discovered through legal means, the location of an object that they also knew about as a result of illegal police activity. It may be that verbal evidence is more likely to have an independent source, because live witnesses can indeed come forward of their own volition, but this simply underscores the degree to which the Court's approach involves a form of judicial “double counting.” The Court would apparently first determine whether the evidence stemmed from an independent source or would inevitably have been discovered; if neither of these rules was found to apply, as here, the Court would still somehow take into account the fact that, as a general proposition (but not in the particular case), witnesses sometimes do come forward of their own volition.

The Court makes a related point that “[t]he greater the willingness of the witness to freely testify, . . . the smaller the incentive to conduct an illegal search to discover the witness.” Ante, at 276. The somewhat incredible premise of this statement is that the police in fact refrain from illegal behavior in which they would otherwise engage because they know in advance both that a witness will be willing to testify and that he or she “will be discovered by legal means.” Ibid. This reasoning surely reverses the normal sequence of events; the instances must be very few in which a witness’ willingness to testify is known before he or she is discovered. In this case, for example, the police did not even know th'at Hennessey was a potentially valuable witness, much less whether she would be willing to testify, prior to conducting the illegal search. See ante, at 279-280. When the police are certain that a witness “will be discovered by legal means,” ante, at 276 — if they ever can be certain about such a fact — they of course have no incentive to find him or her by illegal means, but the same can be said about physical objects that the police know will be discovered legally.

The only other point made by the Court is that exclusion of testimony “perpetually disable [s] a witness from testifying about relevant and material facts.”, Ante, at 277. The “perpetual ... disable [ment]” of which the Court speaks, however, applies as much to physical as to verbal evidence. When excluded, both types of evidence are lost for the duration of the particular trial, despite their being “relevant and material . . . [and] unrelated ... to the purpose of the originally illegal search.” Ibid. Moreover, while it is true that “often” the exclusion of testimony will be very costly to society, cmte, at 278, at least as often the exclusion of physical evidence— such as heroin in a narcotics possession case or business records in a tax case — will be as costly to the same societal interests. But other, more important societal interests, see Brown v. Illinois, 422 U. S., at 599-600; Wong Sun v. United States, 371 U. S., at 486, have led to the rule, which the Court today reaffirms, that “fruits of the poisonous tree” must be excluded despite their probative value, unless the facts of the case justify a finding of sufficient attenuation.

The facts of this case do' not justify such a finding. Although, as the Court notes, ante, at 272; see ante, at 279, four months elapsed between the illegal search and the FBI’s first contact with Hennessey, the critical evidence was provided at the time and place of the search, when the police officer questioned Hennessey and she identified respondent, ante, at 270. The time that elapsed thereafter is of no more relevance than would be a similar time period between the discovery of an object during an illegal search and its later introduction into evidence at trial. In this case, moreover, there were no intervening circumstances between Hennessey’s statement at the time of the search and her later testimony. She did not come to the authorities and ask to testify, despite being a student of police science; an FBI agent had to go to her home and interrogate her. Ante, at 272.

Finally, whatever the police officer’s purpose in the flower shop on the day of the search, the search itself. was not even of arguable legality, as was conceded by the Government below. 542 F. 2d 136, 140 n. 5 (CA2 1976). It is also undisputed that the shop had been under surveillance as part of an ongoing gambling investigation in which the local police force had actively participated; its participation included interception of at least one of respondent’s telephone conversations in the very month of the search. Ante, at 271-272, and n. 2. Under all of the circumstances, the connection here between the official illegality and the disputed testimony cannot be deemed “so attenuated as to dissipate the taint.” The District Court therefore properly excluded the testimony.

I would affirm the judgment of the Court of Appeals.

       Appeal from the suppression order is, of course, authorized by the clear language of 18 U. S. C. §3731 (1976 ed.). That section permits “[a]n appeal by the United States . . . from a decision or order of a district courts [sic] suppressing or excluding evidence . . . , not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information ...” If Congress had intended only pretrial suppression orders to be appealable, it would not have added the phrase “and before the verdict or finding on an indictment or information.”

       The extent of the continued investigation is not made clear on the record but we do know at least that on December 3, 1974, a telephone conversation between Millow and Ceccolini, which implicated the latter in a policy betting operation, was intercepted by local police participating in a combined federal-state gambling investigation.

       Respondent was also indicted on a second count which charged that he had knowingly made a false statement when he testified that he did not know Hank Bucci was involved in gambling operations. The judge found respondent not guilty on this count, however, because “although there is evidence to support this charge the government has not met its burden of proof beyond a reasonable doubt.” App. to Pet. for Cert. 28a.

       Of course, the analysis might be different where the search was conducted by the police for the specific purpose of discovering potential witnesses.

       Empirically speaking, though, I have the gravest doubts as to whether the exclusion of evidence, in and of itself, has any direct appreciable effect on a policeman’s behavior in most situations — emergency actions in, particular. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 416-417,426-427 (1971) (Burger, C. J., dissenting).

       J. Sartre, Being and Nothingness 433 (Barnes trans. 1956).

       A somewhat similar hurdle is presented in civil cases, which may rest decision on the standard of a “reasonable man’s” actions. In those circumstances we assume that a person is ordinarily capable of conforming conduct to an objective standard of reasonableness. Consequently, while the assumption is indulged that the person possesses control over his actions, there is generally no need to inquire into mental processes as such.

       Perhaps a case might arise in which the police conducted a search only for the purpose of obtaining the names of witnesses. In such a circumstance it is possibly arguable that the exclusion of any testimony gained as a result of the search would have an effect on official behavior. This clearly did not occur here, nor can I conceive of many instances in which it would. In any event, the decision to exclude such testimony should depend on the officers’ motivation and not on the “free will” of the witnesses. I would not want to speculate, however, as to whether such an unlikely case would justify modifying a per se approach to this general problem.


source: Caselaw Access Project

author: Mr. Chief Justice Burger Mr. Justice Stewart, Mr. Justice Blackmun, Mr. Justice Marshall, Mr. Justice Stevens,

license: Public Domain

text:
    FOLEY v. CONNELIE, SUPERINTENDENT OF NEW YORK STATE POLICE, et al.
    No. 76-839.
    Argued November 8, 1977
    Decided March 22, 1978
    Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 300. Blackmun, J., filed an opinion concurring in the result, post, p. 300. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 302. Stevens, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 307.

      Jonathan A. Weiss argued the cause for appellant. With him on the briefs was David S. Preminger.

      Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellees. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.

        Vilma S. Martinez and Morris J. Baller filed a brief for the Mexican American Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. 430 U. S. 944 (1977).

The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute, N. Y. Exec. Law § 215 (3) (McKinney 1972), state authorities refused to allow Foley to take the examination. The statute provides:

“No person shall be appointed to the New York state police force unless he shall be a citizen of the United States.”

Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State’s exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge District Court was convened to consider the merits of the claim. The District Court held the statute to be constitutional. 419 F. Supp. 889 (1976). We affirm.

I

The essential facts in this case are uncontroverted. New York Exec. Law § 215 ,(3) (McKinney 1972) prohibits appellant and his class from becoming state troopers. It is not disputed that the State has uniformly complied with this restriction since the statute was enacted in 1927. Under it, an alien who desires to compete for a position as a New York State trooper must relinquish his foreign citizenship and become an American citizen. Some members of the class, including appellant, are not currently eligible for American citizenship due to waiting periods imposed by congressional enactment.

A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed.

Perhaps the best shorthand description of the role of the New York State trooper was that advanced by the District Court: “State police are charged with the enforcement of the law, not in a private profession and for the benefit of themselves and their clients, but for the benefit of the people at large of the State of New York.” 419 F. Supp., at 896.

II

Appellant claims that the relevant New York statute violates his rights under the Equal Protection Clause.

The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country, which is not surprising for we have often been described as “a nation of immigrants.” Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, 413 U. S. 634, 648 (1973). Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on aliens with “heightened judicial solicitude,” Graham v. Richardson, 403 U. S. 365, 372 (1971), a treatment deemed necessary since aliens — pending their eligibility for citizenship — have no direct voice in the political processes. See United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938).

Following Graham, a series of decisions has resulted requiring state action to meet close scrutiny to exclude aliens as a class from educational benefits, Nyquist v. Mauclet, 432 U. S. 1 (1977); eligibility for a broad range of public employment, Sugarman v. Dougall, supra; or the practice of licensed professions, Examining Board v. Flores de Otero, 426 U. S. 572 (1976); In re Griffiths, 413 U. S. 717 (1973). These exclusions struck at the noncitizens’ ability to exist in the community, a position seemingly inconsistent with the congressional determination to admit the alien to permanent residence. See Graham, supra, at 377-378; Barrett, Judicial Supervision of Legislative Classifications — A More Modest Role For Equal Protection?, 1976 B. Y. U. L. Rev. 89, 101.

It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of "strict scrutiny,” because to do so would “obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.” Mauclet, supra, at 14 (Burger, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized “a State’s historical power to exclude aliens from participation in its democratic political institutions,” Dougall, supra, at 648, as part of the sovereign’s obligation “ 'to preserve the basic conception of a political community.’ ” 413 U. S., at 647.

The practical consequence of this theory is that ''our scrutiny will not be so demanding where we deal with matters firmly within a State’s constitutional prerogatives.” Dougall, supra, at 648. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U. S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), aff’d, 426 U. S. 913 (1976). Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those ''important nonelective executive, legislative, and judicial positions,” held by “officers who participate directly in the formulation, execution, or review of broad public policy.” Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.

The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.

Ill

A discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers. The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, 392 U. S. 1 (1968). They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, 357 U. S. 301 (1958), or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, 434 U. S. 106 (1977).

An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper — for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations — can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations — for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct.

Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of “the common occupations of the community” that the then Mr. Justice Hughes referred to in Truax v. Raich, 239 U. S. 33, 41 (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” who exercises no broad power over people generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v. Ray, 386 U. S. 547, 555-557 (1967); cf. Scheuer v. Rhodes, 416 U. S. 232, 245-246 (1974).

In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of non-citizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions. Police officers very clearly fall within the category of “important nonelective . . . officers who participate directly in the . . . execution ... of broad public policy.” Dougall, 413 U. S., at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.

Accordingly, the judgment of the District Court is

Affirmed.

Mr. Justice Stewart,

concurring.

The dissenting opinions convincingly demonstrate that it is difficult if not impossible to reconcile the Court’s judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which I concurred) that I join the opinion of the Court in this case.

Mr. Justice Blackmun,

concurring in the result.

Once again the Court is called upon to adjudicate the constitutionality of one of New York’s many statutes that impose a requirement of citizenship for occupational activity. Although I have joined the Court in striking down citizenship requirements of this kind, see Graham v. Richardson, 403 U. S. 365 (1971); In re Griffiths, 413 U. S. 717 (1973); Examining Board v. Flores de Otero, 426 U. S. 572 (1976), including, specifically, some imposed by the State of New York, see Sugarman v. Dougall, 413 U. S. 634 (1973); and Nyquist v. Mauclet, 432 U. S. 1 (1977), I have no difficulty in agreeing with the result the Court reaches here.

The Court’s prior cases clearly establish the standards to be applied in this one. Mauclet, of course, decided just last Term, is our most recent pronouncement in this area of constitutional law. There, citing Graham v. Richardson, 403 U. S., at 372, we observed once again that a State’s classifications based on alienage “are inherently suspect and subject to close judicial scrutiny,” and, citing Flores de Otero, 426 U. S., at 605, we went on to say that “ ‘the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.’ ” 432 U. S., at 7. In the same opinion, however, limitations were intimated when, citing Sugarman v. Dougall, 413 U. S., at 642 and 647, we said:

“[T]he State’s interest ‘in establishing its own form of government, and in limiting participation in that government to those who are within “the basic conception of a political community"' might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State’s historical and constitutional powers to define the qualifications of voters, or of 'elective or important nonelective’ officials 'who participate directly in the formulation, execution, or review of broad public policy.’ [413 U. S.], at 647. See id., at 648.” 432 U. S., at 11.

When the State is so acting, it need justify its discriminatory classifications only by showing some rational relationship between its interest in preserving the political community and the classification it employs.

I agree with the Court’s conclusion that the State of New York has vested its state troopers with powers and duties that are basic to the function of state government. The State may rationally conclude that those who are to execute these duties should be limited to persons who can be presumed to share in the values of its political community as, for example, those who possess citizenship status. New York, therefore, consistent with the Federal Constitution, may preclude aliens from serving as state troopers.

Mr. Justice Marshall,

with whom Mr. Justice Brennan and Mr. Justice Stevens join, dissenting.

Almost a century ago, in the landmark case of Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886), this Court recognized that aliens are "persons” within the meaning of the Fourteenth Amendment. Eighty-five years later, in Graham v. Richardson, 403 U. S. 365 (1971), the Court concluded that aliens constitute a “ 'discrete and insular’ minority,” and that laws singling them out for unfavorable treatment "are therefore subject to strict judicial scrutiny.” Id., at 372, 376. During the ensuing six Terms, we have invalidated state laws discriminating against aliens on four separate occasions, finding that such discrimination could not survive strict scrutiny. Sugarman v. Dougall, 413 U. S. 634 (1973) (competitive civil service); In re Griffiths, 413 U. S. 717 (1973) (attorneys); Examining Board v. Flores de Otero, 426 U. S. 572 (1976) (civil engineers); Nyquist v. Mauclet, 432 U. S. 1 (1977) (financial assistance for higher education).

Today the Court upholds a law excluding aliens from public employment as state troopers. It bases its decision largely on dictum from Sugarman v. Dougall, supra, to the effect that aliens may be barred from holding “state elective or important nonelective executive, legislative, and judicial positions,” because persons in these positions “participate directly in the formulation, execution, or review of broad public policy.” 413 U. S., at 647. I do not agree with the Court that state troopers perform functions placing them within this “narro [w] . . . exception,” Nyquist v. Mauclet, supra, at 11, to our usual rule that discrimination against aliens is presumptively unconstitutional. Accordingly I dissent.

In one sense, of course, it is true that state troopers participate in the execution of public policy. Just as firefighters execute the public policy that fires should be extinguished, and sanitation workers execute the public policy that streets should be kept clean, state troopers execute the public policy that persons believed to have committed crimes should be arrested. But this fact simply demonstrates that the Sugarman exception, if read without regard to its context, “would swallow the rule.” Nyquist, supra, at 11. Although every state employee is charged with the “execution” of public policy, Sugarman unambiguously holds that a blanket exclusion of aliens from state jobs is unconstitutional.

Thus the phrase “execution of broad public policy” in Sugarman cannot be read to mean simply the carrying out of government programs, but rather must be interpreted to include responsibility for actually setting government policy pursuant to a delegation of substantial authority from the legislature. The head of an executive agency, for example, charged with promulgating complex regulations under a statute, executes broad public policy in a sense that file clerks in the agency clearly do not. In short, as Sugarman indicates, those “elective or important nonelective” positions that involve broad policymaking responsibilities are the only state jobs from which aliens as a group may constitutionally be excluded. 413 U. S., at 647. In my view, the job of state trooper is not one of those positions.

There is a vast difference between the formulation and execution of broad public policy and the application of that policy to specific factual settings. While the Court is correct that “the exercise of police authority calls for a very high degree of judgment and discretion,” ante, at 298, the judgments required are factual in nature; the policy judgments that govern an officer’s conduct are contained in the Federal and State Constitutions, statutes, and regulations. The officer responding to a particular situation is only applying the basic policy choices — which he has no role in shaping — to the facts as he perceives them. We have previously recognized this distinction between the broad policy responsibilities exercised by high executive officials and the more limited responsibilities of police officers and found it relevant in defining the scope of immunity afforded under 42 U. S. C. § 1983:

“When a court evaluates police conduct relating to an arrest its guideline is ‘good faith and probable cause.’ In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices — whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions — is virtually infinite. . . . [S]ince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.” Scheuer v. Rhodes, 416 U. S. 232, 245-247 (1974) (citation omitted).

The Court places great reliance on the fact that policemen make arrests and perform searches, often “without prior judicial authority.” Ante, at 298. I certainly agree that “[an] arrest is a serious matter,” ibid., and that we should be concerned about all “intrusions] on the privacy of the individual.” Ibid. But these concerns do not in any way make it “anomalous” for citizens to be arrested and searched by “noncitizen police officers,” ante, at 299, at least not in New York State. By statute, New York authorizes “any person” to arrest another who has actually committed a felony or who has committed any other offense in the arresting person’s presence. N. Y. Crim. Proc. Law § 140.30 (McKinney 1971). Moreover, a person making an arrest pursuant to this statute is authorized to make a search incident to the arrest. While law enforcement is primarily the responsibility of state troopers, it is nevertheless difficult to understand how the Court can imply that the troopers’ arrest and search authority justifies excluding aliens from the police force when the State has given all private persons, including aliens, such authority.

In Griffiths we held that the State could not limit the practice of law to citizens, “despite a recognition of the vital public and political role of attorneys,” Nyquist v. Mauclet, 432 U. S., at 11. It is similarly not a denigration of the important public role of the state trooper — who, as the Court notes, ante, at 297, operates “in the most sensitive areas of daily life”- — to find that his law enforcement responsibilities do not “make him a. formulator of government policy.” In re Griffiths, 413 U. S., at 729. Since no other rational reason, let alone a compelling state interest, has been advanced in support of the statute here at issue,1 would hold that the statute’s exclusion of aliens from state trooper positions violates the Equal Protection Clause of the Fourteenth Amendment.

Mr. Justice Stevens,

with whom Mr. Justice Brennan joins, dissenting.

A State should, of course, scrutinize closely the qualifications of those who perform professional ■ services within its borders. Police officers, like lawyers, must be qualified in their field of expertise and must be trustworthy. Detailed review of each individual’s application for employment is therefore appropriate. Conversely, a «rule which disqualifies an entire class of persons from professional employment is doubly objectionable. It denies the State access to unique individual talent; it also denies opportunity to individuals on the basis of characteristics that the group is thought to possess.

The first objection poses a question of policy rather than constitutional law. The wisdom of a rule denying a law enforcement agency the services of Hercule Poirot or Sherlock Holmes is thus for New York, not this Court, to decide. But the second objection raises a question of a different kind and a satisfactory answer to this question is essential to the validity of the rule: What is the group characteristic that justifies the unfavorable treatment of an otherwise qualified individual simply because he is an alien?

No one suggests that aliens as a class lack the intelligence or the courage to serve the public as police officers. The disqualifying characteristic is apparently a foreign allegiance which raises a doubt concerning trustworthiness and loyalty so pervasive that a flat ban against the employment of any alien in any law enforcement position is thought to' be justified. But if the integrity of all aliens is suspect, why may not a State deny aliens the right to practice law? Are untrustworthy or disloyal lawyers more tolerable than untrustworthy or disloyal policemen? Or is the legal profession better able to detect such characteristics on an individual basis than is the police department? Unless the Court repudiates its holding in In re Griffiths, 413 U. S. 717, it must reject any conclusive presumption that aliens, as a class, are disloyal or untrustworthy.

A characteristic that all members of the class do- possess may provide the historical explanation for their exclusion from some categories of public employment. Aliens do not vote. Aliens and their families were therefore unlikely to have been beneficiaries of the patronage system which controlled access to public employment during so' much of our history. The widespread exclusion of aliens from such positions today may well be nothing more than a vestige of the historical relationship between nonvoting aliens and a system of distributing the spoils of victory to the party faithful. If that be true, it might explain, but cannot justify, the discrimination.

Even if patronage never influenced the selection of police officers in New York, reference to the law governing denial of public employment for political reasons is nevertheless instructive. In Elrod v. Burns, 427 U. S. 347, the Court held that most public employees are protected from discharge because of their political beliefs but recognized that an exception was required for policymaking officials. The exception identified in Burns was essentially the same as the category of “officers who participate in the formulation, execution, or review of bread public policy” described in Sugarman v. Dougall, 413 U. S. 634, 647. In both cases the special nature of the policy-making position was recognized as justifying a form of discriminatory treatment that could not be applied to regular employees.

The Court should draw the line between policymaking and nonpolicymaking positions in as consistent and intelligible a fashion as possible. As Mr. Justice Marshall points out, ante, at 305, in the context of immunity from liability under 42 U. S. C. § 1983, the Court placed the police officer in a different category from the Governor of Ohio. See Scheuer v. Rhodes, 416 U. S. 232, 245-247. And under Elrod v. Burns, supra, the Court would unquestionably condemn the dismissal of a citizen state trooper because his political affiliation differed from that of his superiors. Yet, inexplicably, every state trooper is transformed into a high ranking, policymaking official when the question presented is whether persons may be excluded from all positions in the police force simply because they are aliens.

Since the Court does not purport to disturb the teaching of Sugarman, this transformation must rest on the unarticulated premise that the police function is at “the heart of representative government” and therefore all persons employed by the institutions performing that function “participate directly in the formulation, execution, or review of broad public policy . . . .” Sugarman v. Dougall, supra, at 647. In my judgment, to state the premise is to refute it. Respect for the law enforcement profession and its essential function, like respect for the military, should not cause us to lose sight of the fact that in our representative democracy neither the constabulary nor the military is vested with broad policymaking responsibility. Instead, each implements the basic policies formulated directly or indirectly by the citizenry. Under the standards announced in Sugarman, therefore, a blanket exclusion of aliens from this particular governmental institution is especially inappropriate.

The Court’s misapprehension of the role of the institutionalized police function in a democratic society obfuscates the true significance of the distinction between citizenship and alienage. The privilege of participating in the formulation of broad public policy — a privilege largely denied to the institutions exercising the police function in our society — is the essence of individual citizenship. It is this privilege which gives dramatic meaning to the naturalization ceremony. The transition from alienage to citizenship is a fundamental change in the status of a person. This change is qualitatively different from any incremental increase in economic benefits that may accrue to holders of citizenship papers. The new citizen’s right to vote and to participate in the democratic decisionmaking process is the honorable prerogative which no alien has a constitutional right to enjoy.

In final analysis, therefore, our society is governed by its citizens. But it is a government of and for all persons subject to its jurisdiction, and the Constitution commands their equal treatment. Although a State may deny the alien the right to participate in the making of policy, it may not deny him equal access to employment opportunities without a good and relevant reason. Sugarman plainly teaches us that the burgeoning public employment market cannot be totally foreclosed to aliens. Since the police officer is not a policymaker in this country, the total exclusion of aliens from the police force must fall.

Even if the Court rejects this analysis, it should not uphold a statutory discrimination against aliens, as a class, without expressly identifying the group characteristic that justifies the discrimination. If the unarticulated characteristic is concern about possible disloyalty, it must equally disqualify aliens from the practice of law; yet the Court does not question the continuing vitality of its decision in Griffiths. Or if that characteristic is the fact that aliens do not participate in our democratic decisionmaking process, it is irrelevant to eligibility for this category of public service. If there is no group characteristic that explains the discrimination, one can only conclude that it is without any justification that has not already been rejected by the Court.

Because the Court’s unique decision fails either to apply or to reject established rules of law, and for the reasons stated by Mr. Justice Marshall, I respectfully dissent.

       We recognize that New York’s statute may effectively prevent some class members from .ever becoming troopers since state law limits eligibility for these positions to those between the age of 21 and 29 years. N. Y. Exec. Law §215 (3) (McKinney 1972).

       One indication of this attitude is Congress’ determination to malee it relatively easy for immigrants to become naturalized citizens. See 8 U. S. C. § 1427 (1976 ed.).

       The alien’s status is, at least for a time, beyond his control since Congress has imposed durational residency requirements for the attainment of citizenship. Federal law generally requires an alien to lawfully reside in this country for five years as a prerequisite to applying for naturalization. 8 U. S. C. § 1427 (a) (1976 ed.).

       In Mauclet, for example, New York State policy reflected a legislative judgment that higher education was “ ‘no longer ... a luxury; it is a necessity for strength, fulfillment and survival.’ ” 432 U. S., at 8 n. 9.

       This is not to say, of course, that a State may accomplish this end with a citizenship restriction that "sweeps indiscriminately,” Dougall, 413 U. S., at 643, without regard to the differences in the positions involved.

       See ABA Project on Standards for Criminal Justice, The Urban Police Function 119 (App. Draft 1973); National Advisory Commission on Criminal Justice Standards and Goals, Police 22-23 (1973); President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 10 (1967).

       After the event, some abuses of power may be subject to remedies by one showing injury. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). And conclusive evidence of criminal conduct may be kept from the knowledge of a jury because of police error or misconduct.

       Twenty-four States besides New York specifically require United States citizenship as a prerequisite for becoming a member of a statewide law enforcement agency: see Ark. Stat. Ann. § 42-406 (1964); Cal. Govt. Code Ann. § 1031 (West Supp. 1978); Fla. Stat. Ann. § 943.13 (2) (West Supp. 1976); Ga. Code § 92A-214 (Supp. 1977); 111. Rev. Stat., ch. 121, §307.9 (1975); Ind. Rules & Regs., Tit. 10, Art. 1, ch. 1, §4-7 (1976); Iowa Code § 80.15 (1977); Kan. Stat. Ann. § 74r-2113 (c) (Supp. 1976); Ky. Rev. Stat. § 16.040 (2)(c) (1971); Mich. Comp. Laws §28.4 (1967); Miss. Code Ann. § 45-3-9 (Supp. 1977); Mo. Rev. Stat. § 43.060 (1969); Mont. Rev. Codes Ann. § 31-105 (3) (a) (v) (Supp. 1977); Nev. Rev. Stat. §281.060 (1) (1975); N. H. Rev. Stat. Ann. § 106-R:20 (Supp. 1975); N. J. Stat. Ann. §53:1-9 (West Supp. 1977); N. M. Stat. Ann. § 39-2-6 (1972); N. D. Cent. Code § 39-03-04 (4) (Supp. 1977); Ore. Rev. Stat. § 181.260 (1) (a) (1977); Pa. Stat. Ann., Tit. 71, § 1193 (Purdon 1962); R. I. Gen. Laws § 42-28-10 (1970); S. D. Comp. Laws Ann. §3-7-9 and §3-1-4 (1974); Tex. Rev. Civ. Stat. Am., Art. 4413 (9) (2) (Vernon 1976); Utah Code Ann. §27-11-11 (1976). Oklahoma requires its officers to be citizens of the State. See Okla. Stat., Tit. 47, § 2-105 (a) (Supp. 1976). Nine other States require American citizenship as part of a general requirement applicable to all types of state officers or employees: see Ala. Code, Tit. 36, § 2-1 (a) (1) (1977); Ariz. Rev. Stat. Ann. § 38-201 (1974); Haw. Rev. Stat. § 78-1 (1976); Idaho Code § 59-101 (1976) and Idaho Const., Art. 6, § 2; Me. Rev. Stat. Ann., Tit. 5, § 556 (Supp. 1977); Mass. Gen. Laws Ann., ch. 31, § 12 (West Supp. 1977); Ohio Rev. Code Ann. § 124.22 (1978); Tenn. Code Ann. §8-1801 (Supp. 1977); Vt. Stat. Ann., Tit. 3, § 262 (1972); W. Va. Const., Art. 4, § 4.

       Police powers in many countries are exercised in ways that we would find intolerable and indeed violative of constitutional rights. To taire only one example, a large number of nations do not share our belief in the freedom of movement and travel, requiring persons to carry identification cards at all times. This, inter alia, affords a rational basis for States to require that those entrusted with the execution of the laws be individuals who, even if not native Americans, have indicated acceptance and allegiance, to our Constitution by becoming citizens.

       Cf. McCarthy v. Philadelphia Civil Service Comm’n, 424 U. S. 645 (1976); Detroit Police Officers Assn. v. Detroit, 385 Mich. 519, 190 N. W. 2d 97 (1971), dismissed for want of substantial federal question, 405 U. S. 950 (1972).

      One of the appellees in Nyquist v. Mauclet, 432 U. S. 1 (1977), listed a succession of New York statutes requiring citizenship, or a declaration of intent to become a citizen, for no fewer than 37 occupations. Brief for Appellee Mauclet, O. T. 1976; No. 76-208, pp. 19-22, nn. 8-44, inclusive. Some of the statutes have been legislatively repealed or modified, or judicially invalidated. Others, apparently, are still in effect; among them are those relating to the occupations of inspector, certified shorthand reporter, funeral director, masseur, physical therapist, and animal health technician.

       In Sugarman, the Court indicated that, if the State were to exclude aliens from these positions, the exclusion would be scrutinized under a standard less demanding than that normally accorded classifications involving a “ ‘discrete and insular’ minority.” 413 U. S., at 642. The Court did not explain why the level of scrutiny should vary with the nature of the job from which aliens are being excluded, and the focus of this part of the opinion was on the State’s interest in preserving “ ‘the basic conception of a political community.’ ” Ibid., quoting Dunn v. Blumslein, 405 U. S. 330, 344 (1972); see 413 U. S., at 647-648. Sugarman may thus be viewed as defining the circumstances under which laws .excluding aliens from state jobs would further a compelling state interest, rather than as defining the circumstances under which lesser scrutiny is applicable. Regardless of which approach is followed, however, the question in this case remains the same: Is the job of state trooper a position involving direct participation “in the formulation, execution, or review of broad public policy”?

       If the state exclusion here were limited to the job of Superintendent of the State Police, a different case would be presented to the extent that this official executes broad public policy in deciding how to deploy officers and in formulating rules governing police conduct.

       This view of the differences between those who apply policy and those with policymaking responsibilities was rejected by Mr. Justice Rehnquist in his lone dissenting opinion in Sugarman. His position was that “ ‘low level' civil servants . . . who apply facts to individual cases are as much ‘governors' as those who write the laws or regulations the ‘low-level' administrator must ‘apply.' " 413 U. S., at 661. The eight-Justice Sugarman majority, in holding as it did, necessarily took the opposite position: that those “who apply facts to individual cases" do not have responsibility for broad policy execution that is in any way comparable to the responsibility exercised by “those who write the laws or regulations."

       See United States v. Rosse, 418 F. 2d 38, 39-40 (CA2 1969); United States v. Viale, 312 F. 2d 595, 599, 600 (CA2 1963). Although many of the cases discussing the right of a private individual to make arrests and searches refer to a “citizen” taking the action, see United States v. Swarovski, 557 F. 2d 40 (CA2 1977), cert. denied, 434 U. S. 1045 (1978); United States v. Rosse, supra, at 39; United States v. Viale, supra, it is clear from the context and from the plain language of the statutory provision that the right to arrest is not limited to citizens but applies to “any person.”

       One other justification for the statute was proffered by the appellee, see App. D-30 (affidavit of Superintendent of State Police), and accepted by the court below:
      “The state quite rightly observes that conflicts of allegiance would be most glaring with respect to the alien’s duty as a state policeman to make arrests of violators of the federal immigration laws, to participate in the Governor’s Detail which provides protection for the Governor and visiting foreign dignitaries, to conduct investigations into matters having to do with government security, and to provide security at events involving foreign visitors such as the 1980 Winter Olympics to be held in Lake Placid, New York.” 419 F. Supp. 889, 898 (SDNY 1976).
      Not surprisingly, the appellee does not rely on this argument in his brief here, and the Court does not mention it. The suggestion that alien troopers would refuse to enforce the law against other aliens is highly offensive. This rationale would justify the State’s refusal to hire members of any group on the basis that the individuals could not be trusted to faithfully enforce the law against other members of their race, nationality, or sex. I would have thought that the day had long since passed when a court would accept such a justification for exclusion of a group from public employment.

       It is worth reiterating that “one need not be a citizen in order to take in good conscience an oath to support the Constitution. See In re Griffiths, 413 U. S., at 726 n. 18.” Hampton v. Mow Sun Wong, 426 U. S. 88, 111 n. 43.

       “In its historical context, the assumption that only citizens would be employed in the federal service is easily understood. The new system of merit appointment,, based on competitive examination, was replacing a patronage system in which appointment had often been treated as a method of rewarding support at the polls; since such rewards were presumably reserved for voters (or members of their families) who would necessarily be citizens, citizenship must have characterized most, if not all, federal employees at that time. The assumption that such a requirement would survive the enactment of the new statute is by no means equivalent to a considered judgment that it should do so.” Id., at 107.

       “A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end.” Elrod v. Burns, 427 U. S., at 367.

         As the Court eloquently points out:
      “The aet of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decision-making. Accordingly, we have recognized ‘a State’s historical power to exclude aliens from participation in its democratic political institutions.’ Dougall, supra, at 648, as part of the sovereign’s obligation ‘to preserve the basic conception of a political community.’ 413 U. S., at 647.” Ante, at 295-296.

       The Court has squarely held that a State may not treat employment as a scarce resource to be reserved for its own citizens. Sugarman v. Dougall, 413 U. S. 634, 641-645. Nor may a State impose special burdens on aliens to provide them with an incentive to become naturalized citizens. Nyquist v. Mauclet, 432 U. S. 1, 9-11. For it is the Federal Government that exercises plenary control over naturalization and immigration. Hampton v. Mow Sun Wong, 426 U. S., at 100-101. The Court’s understanding that “most States expressly confine the employment of police officers to citizens,” ante, at 299, is not persuasive. Most of the statutes cited to support that understanding were enacted before the Court had decided Sugarman. Some of the cited statutes are patently invalid as a result of Sugarman, and there is no evidence that most of the States referred to by the Court have decided to continue enforcement of their citizenship requirement for police officers after deliberate consideration of Sugarman’s teaching that only policymaking officials would be unaffected by the holding.