source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Rehnquist,

license: Public Domain

text:
    HERRING v. NEW YORK
    No. 73-6587.
    Argued February 26, 1975 —
    Decided June 30, 1975

      Diana A. Steele argued the cause for appellant. With her on the briefs was William E. Hellerstein.

      Gabriel I. Levy, Assistant Attorney General of New York, and Norman C. Morse argued the cause for appellee. Mr. Morse was on the brief.

      Louis J. Lefkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Joel Lewittes and Mr. Levy, Assistant Attorneys General, filed a brief for the Attorney General of New York.
   Mr. Justice Stewart

delivered the opinion of the Court.

A New York law confers upon every judge in a non-jury criminal trial the power to deny counsel any opportunity to make a summation of the evidence before the rendition of judgment. N. Y. Crim. Proc. Law § 320.20 (3) (c) (1971). In the case before us we are called upon to assess the constitutional validity of that law.

I

The appellant was brought to trial in the Supreme Court of Richmond County, N. Y., upon charges of attempted robbery in the first and third degrees and possession of a dangerous instrument. He waived a jury.

The trial began on a Thursday, and, after certain preliminaries, the balance of that day and most of Friday were spent on the case for the prosecution. The complaining witness, Allen Braxton, testified that the appellant had approached him outside his home in a Staten Island housing project at about six o’clock on the evening of September 15, 1971, and asked for money. He said that when he refused this demand, the appellant had swung a knife at him. On cross-examination, the appellant’s lawyer attempted to impeach the credibility of this evidence by demonstrating inconsistencies between Braxton’s testimony and other sworn statements that Braxton had previously made. The only other witness for the prosecution was the police officer who had arrested the appellant upon the complaint of Braxton. The officer testified that Braxton had reported the alleged incident to him, and that the appellant, when confronted by the officer later in the evening, had denied Braxton’s story and said that he had been working for a Mr. Taylor at the time of the alleged offense. The officer testified that he had then arrested the appellant and found a small knife in his pocket.

At the close of the case for the prosecution, the court granted a defense motion to dismiss the charge of possession of a dangerous instrument on the ground that the knife in evidence was too small to qualify as a dangerous instrument under state law. The trial was then adjourned for the two-day weekend.

Proceedings did not actually resume until the following Monday afternoon. The first witness for the defense was Donald Taylor, who was the appellant’s employer. He testified that he recalled seeing the appellant on the job premises at about 5:30 p. m. on the day of the alleged offense. The appellant then took the stand and denied Braxton’s story. He said that he had been working on a refrigerator at his place of employment during the time of the alleged offense, and further testified that Braxton, a former neighbor, had threatened on several occasions to “fix” him for refusing to give Braxton money for wine and drugs.

At the conclusion of the case for the defense, counsel made a motion to dismiss the robbery charges. This motion was denied. The appellant’s lawyer then requested to “be heard somewhat on the facts.” The trial judge replied: “Under the new statute, summation is discretionary, and I choose not to hear summations.” The judge thereupon found the appellant guilty of attempted robbery in the third degree, and subsequently sentenced him to serve an indeterminate term of imprisonment with a maximum of four years. The conviction was affirmed without opinion by an intermediate appellate court. Leave to appeal to the New York Court of Appeals was denied. An appeal was then brought here, and we noted probable jurisdiction. 419 U. S. 893.

II

The Sixth Amendment guarantees to the accused in all criminal prosecutions the rights to a “speedy and public trial,” to an “impartial jury,” to notice of the “nature and cause of the accusation,” to be “confronted” with opposing witnesses, to “compulsory process” for defense witnesses, and to the “Assistance of Counsel.” These fundamental rights are extended to a defendant in a state criminal prosecution through the Fourteenth Amendment.

The decisions of this Court have not given to these constitutional provisions a narrowly literalistic construction. More specifically, the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments. For example, in Ferguson v. Georgia, 365 U. S. 570, the Court held constitutionally invalid a state statute that, while permitting the defendant to make an unsworn statement to the court and jury, prevented defense counsel from eliciting the defendant’s testimony through direct examination. Similarly, in Brooks v. Tennessee, 406 U. S. 605, the Court found unconstitutional a state law that restricted the right of counsel to decide “whether, and when in the course of presenting his defense, the accused should take the stand.” Id., at 613. The right to the assistance of counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.

There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a non jury criminal trial is a denial of the basic right of the accused to make his' defense.

One of many cases so holding was Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962). The defendant in that case, indicted for burglary, was tried by the court without a jury. The defendant in his testimony admitted being in the vicinity of the offense, but denied any involvement in the crime. At the conclusion of the testimony, the trial judge announced a judgment of guilty. Defense counsel objected, stating that he wished to present argument on the facts. But the trial judge refused to hear any argument on the ground that only a question of credibility was involved, and that therefore counsel’s argument would not change his mind. The Maryland Court of Appeals held that the trial court’s refusal to permit defense counsel to make a final summation violated the defendant’s right to the assistance of counsel under the State and Federal Constitutions:

“The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny the accused such right.” Id., at 207, 178 A. 2d, at 881.

The widespread recognition of the right of the defense to make a closing summary of the evidence to the trier of the facts, whether judge or jury, finds solid support in history. In the 16th and 17th centuries, when notions of compulsory process, confrontation, and counsel were in their infancy, the essence of the English criminal trial was argument between the defendant and counsel for the Crown. Whatever other procedural protections may have been lacking, there was no absence of debate on the factual and legal issues raised in a criminal case. As the rights to compulsory process, to confrontation, and to counsel developed, the adversary system’s commitment to argument was neither discarded nor diluted. Rather, the reform in procedure had the effect of shifting the primary function of argument to summation of the evidence at the close of trial, in contrast to the “fragmented” factual argument that had been typical of the earlier common law.

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. See In re Winship, 397 U. S. 358.

The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.

This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. See generally 5 R. Anderson, Wharton’s Criminal Law and Procedure §2077 (1957). Cf. American Bar Association Project on Standards for Criminal Justice, The Prosecution Function § 5.8, pp. 126-129, and the Defense Function § 7.8, pp. 277-282 (App. Draft 1971).

But there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all. The only conceivable interest served by such a statute is expediency. Yet the difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.

Some cases may appear to the trial judge to be simple — open and shut — at the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be “likely to leave [a] judge just where it found him.” But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.

The present case is illustrative. This three-day trial was interrupted by an interval of more than two days— a period during which the judge's memory may well have dimmed, however conscientious a note-taker he may have been. At the conclusion of the evidence on the trial's final day, the appellant's lawyer might usefully have pointed to the direct conflict in the trial testimony of the only two prosecution witnesses concerning how. and when the appellant was found on the evening of the alleged offense. He might also have stressed the many inconsistencies, elicited on cross-examination, between the trial testimony of the complaining witness and his earlier sworn statements. He might reasonably have argued that the testimony of the appellant’s employer was entitled to greater credibility than that of the complaining witness, who, according to the appellant, had threatened to “fix” him because of personal differences in the past. There is no way to know whether these or any other appropriate arguments in summation might have affected the ultimate judgment in this case. The credibility assessment was solely for the trier of fact. But before that determination was made, the appellant, through counsel, had a right to be heard in summation of the evidence from the point of view most favorable to him.

In denying the appellant this right under the authority of its statute, New York denied him the assistance of counsel that the Constitution guarantees. Accordingly, the judgment before us is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

It is.so ordered.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Blackmun join, dissenting.

I

The Court has made of this a very curious case. What began as a constitutional challenge to a statute which gives trial courts discretion as to whether “parties” may deliver summations, has been transformed into an ex- . ploration of the right to counsel — although no one doubts that appellant was competently represented throughout the proceedings which resulted in his conviction. Today’s opinion, in deriving from the right to counsel further rights relating to the conduct of a trial, expands the earlier holdings in Ferguson v. Georgia, 365 U. S. 570 (1961), and Brooks v. Tennessee, 406 U. S. 605 (1972). In each of these three instances one must presume, in view of the Court’s analytical approach, that regardless of the intrinsic importance of the rights involved, they are enforced only because the accused has a prior right to the assistance of a third party in the preparation and presentation of his defense.

I think that in each instance a statement from Mr. Justice Frankfurter’s separate opinion in Ferguson is apropos: “This is not a right-to-counsel case.” 365 U. S., at 599. In the present case, the crucial fact is not that counsel wishes to present a summation of the evidence, but that the defendant — whether through counsel or otherwise — wishes to make such a summation. Of course I do not suggest that the rights enforced in these cases are without basis, at least in particular cases, in the Due Process Clause of the Fourteenth Amendment. Cf. id., at 598-601 (opinion of Frankfurter, J.); Brooks v. Tennessee, supra, at 618 (Rehnquist, J., dissenting). But I do suggest that the Court’s analytical framework, and its resulting prophylactic rule, are wrongly employed to decide this case.

I would have thought that in Faretta v. California, ante, p. 806, the Court had recanted its approach in Ferguson and Brooks. In Faretta the Court concluded that it is the Sixth Amendment, and not the Right-to-Counsel Clause of that Amendment, which “constitutionalizes the right in an adversary criminal trial to make a defense as we know it.” Ante, at 818. Yet in the present case we are informed that it is the Right-to-Counsel Clause which constitutionalizes the right to present a defense “in accord with the traditions of the adversary factfinding process.” Ante, at 857. Not being content merely to contradict Faretta by holding that entitlement to the traditions of our judicial system depends upon the right to retain counsel, the Court also states that, “of course, the same right to make a closing argument” is available to those who choose not to exercise their right to counsel. Ante, at 864 n. 18. To complete the confusion, the Court does not explain the latter ipse dixit, but does cite one case — Faretta.

II

The Due Process Clause of the Fourteenth Amendment has long been recognized as assuring “fundamental fairness” in state criminal proceedings. See, e. g., Lisenba v. California, 314 U. S. 219, 236 (1941); Moore v. Dempsey, 261 U. S. 86, 90-91 (1923). Throughout the history of the Clause we have generally considered the question of fairness on a case-by-case basis, reflecting the fact that the elements of fairness vary with the circumstances of particular proceedings. As the Court observed in Snyder v. Massachusetts, 291 U. S. 97, 116-117 (1934):

“Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”

See, e. g., Sheppard v. Maxwell, 384 U. S. 333 (1966); Spencer v. Texas, 385 U. S. 554 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973); Cupp v. Naughten, 414 U. S. 141 (1973).

However in some instances the Court has engaged in a process of “specific incorporation,” whereby certain provisions of the Bill of Rights have been applied against the States. See the cases cited ante, at 857 n. 7. In making the decision whether or not a particular provision relating to the conduct of a trial should be incorporated, we have been guided by whether the right in question may be deemed essential to fundamental fairness — an analytical approach which is compelled if we are to remain true to the basic orientation of the Due Process Clause. See, e. g., In re Oliver, 333 U. S. 257, 270-271 (1948) (public trial); Duncan v. Louisiana, 391 U. S. 145, 155-158 (1968) (jury trial); Pointer v. Texas, 380 U. S. 400, 403-404 (1965) (confrontation); Washington v. Texas, 388 U. S. 14, 17-19 (1967) (compulsory process); Gideon v. Wainwright, 372 U. S. 335, 342 (1963) (appointed counsel). But once we have determined that a particular right should be incorporated against the States, we have abandoned case-by-case considerations of fairness. Incorporation, in effect, results in the establishment of a strict prophylactic rule, one which is to be generally observed in every case regardless of its particular circumstances. It is a judgment on the part of this Court that the probability of unfairness in the absence of a particular right is so great that denigration of the right will not be countenanced under any circumstances. These judgments by this Court reflect similar judgments made by the Constitution’s Framers with regard to the Federal Government.

Beyond certain of the specified rights in the Bill of Rights, however, I do not understand the basis for abandoning the case-by-case approach to fundamental fairness. There are a myriad of rules and practices governing the conduct of criminal proceedings which may or may not in particular circumstances be necessary to assure fundamental fairness. Obvious examples are the rules governing the introduction and testing of evidence, as well as, I think, the New York rule governing summations in nonjury trials. Such matters are not specifically dealt with in the text of the Constitution, nor are they subject to the judgment that uniform application of a particular rule is necessary because the likelihood of unfairness is too great when that rule is not observed. As to such matters it is appropriate, and frequently necessary, that trial judges be accorded considerable discretion, subject of course to both appellate review on an abuse-of-discretion standard and, ultimately, to the fundamental fairness inquiry under the Fourteenth Amendment.

The present case is a prime example of why a prophylactic rule with regard to summations' in non jury trials is thoroughly inappropriate. The case was tried before a judge who, unlike a jury, may take notes on testimony, and who is experienced in both judging the credibility of witnesses and testing the relevance of their testimony to the elements which must be proved to obtain a conviction. The case was conceptually and factually a simple one, involving no more than whether one was to believe the victim, despite the inconsistencies in his testimony, or the defendant. The judge had previously permitted appellant’s counsel to summarize the evidence, on the occasion of the motion to dismiss at the close of the State’s case. That appellant’s counsel had considerable faith in the judge’s familiarity with, and ability to organize, the evidence is shown by the transcript of that earlier summation:

“[MR. ADAMS:] Do you want to hear me extensively on that, Judge? Or I have a witness here, I can go on, or would you rather hear me on some lengthy argument subsequently, Judge?
“THE COURT: I will hear anything you have to say.
“MR. ADAMS: All right. Judge, I believe here that as a matter of law we have a doubt here. Firstly, on this first witness of the prosecution here, Judge. There were numerous inconsistencies, and I will not bore the Court reading that. Of course the Court has copious notes on it, and I am sure it is very fresh in the Court’s mind. But on top of that, Judge, we have a questionable complainant, with a questionable way of how it happened, no witness other than this complainant.
“An officer who checked out this particular matter testified here and said that the man was working at that time. A definite denial by the defendant. And I believe that as a matter of law, Judge, there is- a reasonable doubt here.” App. 66 (emphasis added).

Similarly, when the opportunity to summarize was denied, appellant’s counsel did not so much as suggest that he thought it necessary to refresh the judge’s memory as to certain matters. It should also be noted that in his earlier argument counsel had referred to most of the matters which the Court today suggests might have usefully been brought to the judge’s attention in a final summation. See ante, at 864. Finally, the fact that the judge conducted this trial in a fairminded fashion, and would not arbitrarily prevent a summation which could be expected to clarify his understanding of the case, is evidenced by his dismissal of one count over the vigorous protests of the prosecution.

Whatever theoretical effect the denial of argument may have had on the judgment of conviction, its practical effect on the outcome must have been close to nothing. The trial judge was not conducting a moot court; he was sitting as the finder of fact in a trial in which he had been present during the testimony of every single witness. No experienced advocate would insist on presenting argument to such a judge after he had indicated his belief that argument would not be of assistance. Trial counsel here did not insist, and the claim which is today sustained by this Court is urged by other counsel.

The truth of the matter is that appellant received a fair trial, and I do not read the Court’s opinion to claim otherwise. The opinion instead establishes a right to summation in criminal trials regardless of circumstances, by tagging that right onto one of the specifically incorporated rights. It thereby conveniently avoids the difficulties of being unable to characterize appellant’s trial as fundamentally unfair, but only at the expense of ignoring the logical difficulty of adorning the specifically incorporated rights with characteristics which are not themselves necessary for fundamental fairness.

The nature of the right which the Court today creates is as curious as its genesis. Apparently it requires nothing more than pro forma observance, since the trial judge “must be and is given great latitude” in controlling the duration and limiting the scope of closing summations. He may determine what is a “reasonable” time for argument, and at what point the argument becomes repetitive or redundant, or strays “unduly” from the mark. “In all these respects he must have broad discretion.” Ante, at 862. That is, after 30 seconds, or some other minimal period of argument, the judge is free to exercise his discretion. It is not clear why this should be so. If it is true that “there is no certain way for a trial judge to identify accurately [those cases in which closing argument may be beneficial], until the judge has heard the closing summation of counsel,” ante, at 863, it is equally true that he cannot determine whether continued argument will be repetitive, redundant, or otherwise useless until he has heard the continued argument. But in any event, the constitutional issue does rather quickly become framed once again according to the standards which should have governed all along — whether or not the judge’s actions in the particular case deprived the defendant of a trial which was fundamentally fair.

By propagating a right to summation — despite such a right’s lack of textual basis, and despite the inability reasonably to conclude that the right is so basic that we cannot chance trial court discretion in the matter — the Court has furthered the practice of reviewing state criminal trials in a piecemeal fashion. The incident upon which this reversal is based was but one stage in a carefully conducted trial, and cannot be claimed to have permeated the entire proceeding as would trial without a jury, or without counsel. The Court is thus disregarding the basic question of whether the proceeding by which a defendant is deprived of his liberty is fundamentally fair.

The Court’s decision derives no support either from logic or from the Amendment it professes to apply. Since it reverses a criminal conviction which was fairly obtained, I dissent.

       Section 320.20 (3) (c) provides:
      “The court may in its discretion permit the parties to deliver summations. If the court grants permission to one party, it must grant it to the other also. If both parties deliver summations, the defendant’s summation must be delivered first.”
      By contrast, New York law explicitly grants a right to make a “closing statement” in every civil case. N. Y. Civ. Prac. Rule 4016 (1963).

       N. Y. Penal Law §§ 110.00/160.15, 110.00/160.05, 265.05 (1975).

       On cross-examination of Braxton, the appellant’s lawyer demonstrated the following inconsistencies: First, Braxton testified at trial that, after running into his house to evade the appellant, he did not look back outside to see where the appellant had gone; but before the grand jury, Braxton had said that, after entering his house, he had looked outside and the appellant was gone. Second, Braxton testified at trial that the knifeblade was shiny; but in his grand jury testimony he had said that he could not remember if it was shiny or not. Third, Braxton testified at trial that the appellant had asked him for money in a “soft” voice; but before the grand jury he had stated that the request for money was “kind of loud.” Fourth, Braxton testified at trial that the appellant had swung a blade at him once; but in the felony complaint filed the day after the alleged crime, he had stated that the appellant had swung a knife at him “a couple of times.”

       There was a major inconsistency between the police officer’s testimony and that of Braxton. Braxton testified that he was walking down the street with the officer at about 6:45 p. m. when they came across the appellant. But the officer testified that he had searched for the appellant with Braxton until only about 6:30 p. m., when they had separated, and that about an hour later he had seen the appellant and Braxton on opposite sides of Broadway. Thus Braxton testified that he and the officer were together when they found the appellant about 6:45 p. m., while the officer’s testimony was that he had separated from Braxton about 6:30 p. m., and that he next saw Braxton and the appellant on opposite sides of a street at about 7:30 p. m.

       The court subsequently certified that in affirming the judgment, it had rejected the appellant’s constitutional claims:
      “Upon the appeal herein, there was presented and passed upon the following constitutional question, namely, whether relator’s rights under the Fourth, Sixth and Fourteenth Amendments were denied by the trial court’s application of paragraph (c) of subdivision 3 of CPL 320.20 to refuse appellant permission to deliver a summation. This court considered appellant’s said conviction and determined that none of his constitutional rights were violated.”

       The Sixth Amendment provides:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...[,] to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

       See Klopfer v. North Carolina, 386 U. S. 213 (speedy trial); In re Oliver, 333 U. S. 257 (public trial); Duncan v. Louisiana, 391 U, S. 145 (jury trial); Cole v. Arkansas, 333 U. S. 196 (notice of nature and cause of accusation); Pointer v. Texas, 380 U. S. 400 (confrontation); Washington v. Texas, 388 U. S. 14 (compulsory process); Gideon v. Wainwright, 372 U. S. 335, and Argersinger v. Hamlin, 407 U. S. 25 (assistance of counsel).

       See, e. g., Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894); People v. Green, 99 Cal. 564, 34 P. 231 (1893); State v. Hoyt, 47 Conn. 518 (1880); Hall v. State, 119 Fla. 38, 160 So. 511 (1935); Williams v. State, 60 Ga. 367 (1878); Porter v. State, 6 Ga. App. 770, 65 S. E. 814 (1909); State v. Gilbert, 65 Idaho 210, 142 P. 2d 584 (1943); People v. McMullen, 300 Ill. 383, 133 N. E. 328 (1921); Lynch v. State, 9 Ind. 541 (1857); State v. Verry, 36 Kan. 416, 13 P. 838 (1887); Sizemore v. Commonwealth, 240 Ky. 279, 42 S. W. 2d 328 (1931); State v. Cancienne, 50 La. Ann. 1324, 24 So. 321 (1898); Wingo v. State, 62 Miss. 311 (1884); State v. Page, 21 Mo. 257 (1855); State v. Tighe, 27 Mont. 327, 71 P. 3 (1903); State v. Shedoudy, 45 N. M. 516, 118 P. 2d 280 (1941); People v. Marcelin, 23 App. Div. 2d 368, 260 N. Y. S. 2d 560 (1965); State v. Hardy, 189 N. C. 799, 128 S. E. 152 (1925); Weaver v. State, 24 Ohio St. 584 (1874); State v. Bogoway, 45 Ore. 601, 78 P. 987 (1904), rehearing, 45 Ore. 611, 81 P. 234 (1905); Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887); State v. Ballenger, 202 S. C. 155, 24 S. E. 2d 175 (1943); Word v. Commonwealth, 30 Va. 743 (1831); State v. Mayo, 42 Wash. 540, 85 P. 251 (1906); Seattle v. Erickson, 55 Wash. 675, 104 P. 1128 (1909).
      One treatise states the general rule as follows: “The presentation of his defense by argument to the jury, by himself or his counsel, is a constitutional right of the defendant which may not be denied him, however clear the evidence may seem to the trial court.” 5 R. Anderson, Wharton’s Criminal Law and Procedure § 2077 (1957).

       See United States v. Walls, 443 F. 2d 1220 (CA6 1971); Thomas v. District of Columbia, 67 App. D. C. 179, 90 F. 2d 424 (1937) ; United States ex rel. Spears v. Johnson, 327 F. Supp. 1021 (ED Pa. 1971), rev’d on other grounds, 463 F. 2d 1024 (CA3 1972); United States ex rel. Wilcox v. Pennsylvania, 273 F. Supp. 923 (ED Pa. 1967); Floyd v. State, 90 So. 2d 105 (Fla. 1956); Olds v. Commonwealth, 10 Ky. 465 (1821); Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); People v. Thomas, 390 Mich. 93, 210 N. W. 2d 776 (1973); Decker v. State, 113 Ohio St. 512, 150 N. E. 74 (1925); Commonwealth v. McNair, 208 Pa. Super. 369, 222 A. 2d 599 (1966); Commonwealth v. Gambrell, 450 Pa. 290, 301 A. 2d 596 (1973); Anselin v. State, 72 Tex. Cr. R. 17, 160 S. W. 713 (1913); Walker v. State, 133 Tex. Cr. R. 300, 110 S. W. 2d 578 (1937); Ferguson v. State, 133 Tex. Cr. R. 250, 110 S. W. 2d 61 (1937). Cf. Collingsworth v. Mayo, 173 F. 2d 695, 697 (CA5 1949) ; State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925). But see People v. Manske, 399 Ill. 176, 77 N. E. 2d 164 (1948). Cf. People v. Berger, 288 Ill. 47, 119 N. E. 975 (1918); Casterlow v. State, 256 Ind. 214, 267 N. E. 2d 552 (1971); Reed v. State, 232 Ind. 68, 111 N. E. 2d 661 (1953); Lewis v. State, 11 Ga. App. 14, 74 S. E. 442 (1912),

       Stephen has described the trial procedure in this period as a “long argument between the prisoner and the counsel for the Crown.” 1 J. Stephen, History of the Criminal Law of England 326 (1883). For a fuller description of the trial process in that period, see id,., at 325-326, 350.

       See 7 Will. 3, c. 3, § 1 (1695); 1 Anne, Stat. 2, c. 9, § 3 (1701) ; 6&7 Will. 4, c. 114, § 1 (1836).

       Cf. Stephen, supra, n. 10, at 349.
      In the Colonies, where a similar reform in criminal defendants’ rights occurred, common practice, if not right, apparently gave to the accused the opportunity to sum up his case in closing argument. For example, Zephaniah Swift, in an early colonial treatise on the law in Connecticut, wrote:
      “When the exhibition of evidence is closed, the attorney for the state opens the argument, the counsel for the prisoner follow[s], the attorney for the state then closes the argument, and the chief justice then sums up the evidence in his charge delivered to the jury, in which he states in the most candid and impartial manner, the evidence and the law, and the arguments of the counsel for the state, as well as the prisoner. ...” 2 Z. Swift, A System of the Laws of the State of Connecticut 401 (1796).
      With a lesser degree of certainty, a modern scholar concludes that in the trial of capital offenses in colonial Virginia, it was likely, but not certain, that the accused would be given an opportunity to make a dosing argument in summation at the end of the trial. See H. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia 101 (1965).
      In England, in 1865, the right of the defendant in a criminal trial to make a closing argument, either by himself or by counsel if he was represented, was given express statutory recognition: “[U]pon every Trial . . . whether the Prisoners ... or any of them, shall be defended by Counsel or not . . . such Prisoner . . . shall be entitled . . . when all the Evidence is concluded to sum up the Evidence respectively.” Criminal Procedure Act of 1865, 28 Viet., c. 18, § 2. This remains the rule in England. 10 Halsbury’s Laws of England § 777, pp. 422-423 (3d ed. 1955). See also T. Butler & M. Garsia, Archibold’s Pleading, Evidence and Practice in Criminal Cases, § 558 (37th ed. 1969). Cf. R. v. Wainwright, 13 Cox Cr. Cas. 171 (1875); R. v. Wickham, 55 Cr. App. R. 199 (1971) (noted at 1971 Crim. L. Rev. 233).

       We deal in this case only with final argument or summation at the conclusion of the evidence in a criminal trial. Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process.

       R. Jackson, The Struggle for Judicial Supremacy 301 (1941).

       The contention has been made that, while a right to make closing argument should be recognized in a jury trial, there is insufficient justification for such a right in the context of a bench trial. This view rests on the premise that a judge, with legal training and experience, will be likely to see the case clearly, rendering argument superfluous, or to recognize that further illumination of the issues would be helpful, in which ease he would permit closing argument.
      We find this contention unpersuasive. Judicial training and expertise, however it may enhance judgment, does not render memory or reasoning infallible. Moreover, in one important respect, closing argument may be even more important in a bench trial than in a trial by jury. As Mr. Justice Powell has observed, the “collective judgment” of the jury "tends to compensate for individual shortcomings and furnishes some assurance of a reliable decision.” Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 4 (1966). In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury.

       See n. 4, supra.

       See n. 3, supra.

       A defendant who has exercised the right to conduct his own defense has, of course, the same right to make a closing argument. See Faretta v. California, ante, p. 806.

       The employer’s credibility was not at issue. Not only was he vague as to the times at which he had seen appellant at his garage, but that garage was located only 3% blocks from the scene of the crime. App. 76, 86.

       The colloquy at the end of the trial was as follows:
      “MR. ADAMS: Judge, at this time I respectfully move to— make two motions, Judge. Firstly, that the Court dismiss the two counts, first count and the second count of the indictment on the grounds the People have failed to make out a prima facie case; and on the further grounds the People have failed to prove the defendant guilty of each and every part and parcel of the crimes charged in count one and count two beyond a reasonable doubt as a matter of law, and as a matter of fact.
      “THE COURT: Motion denied. I will take a short recess to deliberate, and I will give you a verdict.
      “MR. ADAMS: Well, can I be heard somewhat on the facts?
      “THE COURT: Under the new statute, summation is discretionary, and I choose not to hear summations.
      “THE CLERK: Remand.” App. 92.

       While the Court, ante, at 862, presents a variety of arguments supporting the wisdom and desirability of generally permitting closing arguments in nonjury trials, none of them impress me as rising to the level of fundamental fairness. They would be of substantial merit if presented to the New York Legislature, but are hardly relevant to the constitutional inquiry which it is our duty to perform. As for the Court's final flourish (“no aspect of such advocacy could be more important”), it is obvious hyperbole which can only be uttered in complete disregard of such matters as cross-examination, the selection of trial strategy and witnesses, and attempts to exclude unconstitutionally obtained evidence.

       1 would also think it not unlikely under the Court’s holding that post-trial briefing would be an adequate substitute for oral summation, since it meets the concerns which the Court expresses as the basis for its newly found constitutional right. See ante, at 862.


author: Mr. Justice Powell Mr. Justice Rehnquist, Mr. Justice Douglas,

text:
    UNITED STATES v. BRIGNONI-PONCE
    No. 74-114.
    Argued February 18, 1975 —
    Decided June 30, 1975

      Deputy Solicitor General Frey argued the cause for the United States. On the briefs were Solicitor General Bork, Assistant Attorney General Petersen, Acting Assistant Attorney General Keeney, Mark L. Evans, Peter M. Shannon, Jr., and Jerome M. Feit.

      John J. Cleary, by appointment of the Court, 419 U. S. 1017, argued the cause for respondent. With him on the brief was Charles M. Sevilla

         Sanford Jay Rosen filed a brief for the Mexican American Legal Defense and Educational Fund as amicus curiae urging affirmance.

   Mr. Justice Powell

delivered the opinion of the Court.

This case raises questions as to the United States Border Patrol’s authority to stop automobiles in areas near the Mexican border. It differs from our decision in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), in that the Border Patrol does not claim authority to search cars, but only to question the occupants about their citizenship and immigration status.

I

As part of its regular traffic-checking operations in southern California, the Border Patrol operates a fixed checkpoint on Interstate Highway 5 south of San Clemente. On the evening of March 11, 1973, the checkpoint was closed because of inclement weather, but two officers were observing northbound traffic from a patrol car parked at the side of the highway. The road was dark, and they were using the patrol car’s headlights to illuminate passing cars. They pursued respondent’s car and stopped it, saying later that their only reason for doing so was that its three occupants appeared to be of Mexican descent. The officers questioned respondent and his two passengers about their citizenship and learned that the passengers were aliens who had entered the country illegally. All three were then arrested, and respondent was charged with two counts of knowingly transporting illegal immigrants, a violation of § 274 (a) (2) of the Immigration and Nationality Act, 66 Stat. 228, 8 U. S. C. § 1324 (a)(2). At trial respondent moved to suppress the testimony of and about the two passengers, claiming that this evidence was the fruit of an illegal seizure. The trial court denied the motion, the aliens testified at trial, and respondent was convicted on both counts.

Respondent’s appeal was pending in the Court of Appeals for the Ninth Circuit when we announced our decision in Almeida-Sanchez v. United States, supra, holding that the Fourth Amendment prohibits the use of roving patrols to search vehicles, without a warrant or probable cause, at points removed from the border and its functional equivalents. The Court of Appeals, sitting en banc, held that the stop in this case more closely resembled a roving-patrol stop than a stop at a traffic checkpoint, and applied the principles of Almeida-Sanchez. The court held that the Fourth Amendment, as interpreted in Almeida-Sanchez, forbids stopping a vehicle, even for the limited purpose of questioning its occupants, unless the officers have a “founded suspicion” that the occupants are aliens illegally in the country. The court refused to find that Mexican ancestry alone supported such a “founded suspicion” and held that respondent’s motion to suppress should have been granted. 499 F. 2d 1109 (1974). We granted certiorari and set the case for oral argument with No. 73-2050, United States v. Ortiz, post, p. 891, and No. 73-6848, Bowen v. United States, post, p. 916. 419 U. S. 824 (1974).

The Government does not challenge the Court of Appeals’ factual conclusion that the stop of respondent’s car was a roving-patrol stop rather than a checkpoint stop. Brief for United States 8. Nor does it challenge the retroactive application of Almeida-Sanchez, supra, Brief for United States 9, or contend that the San Clemente checkpoint is the functional equivalent of the border. The only issue presented for decision is whether a roving patrol may stop a vehicle in an area near the border and question its occupants when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. For the reasons that follow, we affirm the decision of the Court of Appeals.

II

The Government claims two sources of statutory authority for stopping cars without warrants in the border areas. Section 287 (a)(1) of the Immigration and Nationality Act, 8 U. S. C. § 1357 (a)(1), authorizes any officer or employee of the Immigration and Naturalization Service (INS) without a warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” There is no geographical limitation on this authority. The Government contends that, at least in the areas adjacent to the Mexican border, a person’s apparent Mexican ancestry alone justifies belief that he or she is an alien and satisfies the requirement of this statute. Section 287 (a)(3) of the Act, 8 U. S. C. § 1357 (a)(3), authorizes agents, without a warrant,

“within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle . . . .”

Under current regulations, this authority may be exercised anywhere within 100 miles of the border. 8 CFR § 287.1 (a) (1975). The Border Patrol interprets the statute as granting authority to stop moving vehicles and question the occupants about their citizenship, even when its officers have no reason to believe that the occupants are aliens or that other aliens may be concealed in the vehicle. But “no Act of Congress can authorize a violation of the Constitution,” AImeida-Sanchez, supra, at 272, and we must decide whether the Fourth Amendment allows such random vehicle stops in the border areas.

Ill

The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). “[Wjhenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized’ that person,” id., at 16, and the Fourth Amendment requires that the seizure be “reasonable.” As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. Id., at 20-21; Camara v. Municipal Court, 387 U. S. 523, 536-537 (1967).

The Government makes a convincing demonstration that the public interest demands effective measures to prevent the illegal entry of aliens at the Mexican border. Estimates of the number of illegal immigrants in the United States vary widely. A conservative estimate in 1972 produced a figure of about one million, but the INS now suggests there may be as many as 10 or 12 million aliens illegally in the country. Whatever the number, these aliens create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services. The aliens themselves are vulnerable to exploitation because they cannot complain of substandard working conditions without risking deportation. See generally Hearings on Illegal Aliens before Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st and 2d Sess., ser. 13, pts. 1-5 (1971-1972).

The Government has estimated that 85% of the aliens illegally in the country are from Mexico. United States v. Baca, 368 F. Supp. 398, 402 (SD Cal. 1973). The Mexican border is almost 2,000 miles long, and even a vastly reinforced Border Patrol would find it impossible to prevent illegal border crossings. Many aliens cross the Mexican border on foot, miles away from patrolled areas, and then purchase transportation from the border area to inland cities, where they find jobs and elude the immigration authorities. Others gain entry on valid temporary border-crossing permits, but then violate the conditions of their entry. Most of these aliens leave the border area in private vehicles, often assisted by professional “alien smugglers.” The Border Patrol’s traffic-checking operations are designed to prevent this inland movement. They succeed in apprehending some illegal entrants and smugglers, and they deter the movement of others by threatening apprehension and increasing the cost of illegal transportation.

Against this valid public interest we must weigh the interference with individual liberty that results when an officer stops an automobile and questions its occupants. The intrusion is modest. The Government tells us that a stop by a roving patrol “usually consumes no more than a minute.” Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside. According to the Government, “[a] 11 that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” Ibid.

Because of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest. In Terry v. Ohio, supra, the Court declined expressly to decide whether facts not amounting to probable cause could justify an “investigative 'seizure’ ” short of an arrest, 392 U. S., at 19 n. 16, but it approved a limited search — a pat-down for weapons — for the protection of an officer investigating suspicious behavior of persons he reasonably believed to be armed and dangerous. The Court approved such a search on facts that did not constitute probable cause to believe the suspects guilty of a crime, requiring only that “the police officer ... be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” a belief that his safety or that of others is in danger. Id., at 21; see id., at 27.

We elaborated on Terry in Adams v. Williams, 407 U. S. 143 (1972), holding that a policeman was justified in approaching the respondent to investigate a tip that he was carrying narcotics and a gun.

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Id,., at 145-146.

These cases together establish that in appropriate circumstances the Fourth Amendment allows a properly limited “search” or “seizure” on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime. In both Terry and Adams v. Williams the investigating officers had reasonable grounds to believe that the suspects were armed and that they might be dangerous. The limited searches and seizures in those cases were a valid method of protecting the public and preventing crime. In this ease as well, because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be “reasonably related in scope to the justification for their initiation.” 392 U. S., at 29. The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.

We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops. In the context of border area stops, the reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government. Roads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well. San Diego, with a metropolitan population of 1.4 million, is located on the border. Texas has two fairly large metropolitan areas directly on the border: El Paso, with a population of 360,000, and the Brownsville-McAllen area, with a combined population of 320,000. We are confident that substantially all of the traffic in these cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens. To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. The only formal limitation on that discretion appears to be the administrative regulation defining the term “reasonable distance” in § 287 (a) (3) to mean within 100 air miles from the border. 8 CFR §287.1 (a) (1975). Thus, if we approved the Government’s position in this case, Border Patrol officers could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road, without any reason to suspect that they have violated any law.

We are not convinced that the legitimate needs of law enforcement require this degree of interference with lawful traffic. As we discuss in Part IV, infra, the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators. Consequently, a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference. Under the circumstances, and even though the intrusion incident to a stop is modest, we conclude that it is not “reasonable” under the Fourth Amendment to make such stops on a random basis.

The Government also contends that the public interest in enforcing conditions on legal alien entry justifies stopping persons who may be aliens for questioning about their citizenship and immigration status. Although we may assume for purposes of this case that the broad congressional power over immigration, see Kleindienst v. Mandel, 408 U. S. 753, 765-767 (1972), authorizes Congress to admit aliens on condition that they will submit to reasonable questioning about their right to be and remain in the country, this power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. For the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.

IV

The effect of our decision is to limit exercise of the authority granted by both § 287 (a)(1) and § 287 (a) (3). Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.

Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant. See Carroll v. United States, 267 U. S. 132, 159-161 (1925); United States v. Jaime-Barrios, 494 F. 2d 455 (CA9), cert. denied, 417 U. S. 972 (1974). They also may consider information about recent illegal border crossings in the area. The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion. See United States v. Larios-Montes, 500 F. 2d 941 (CA9 1974); Duprez v. United States, 435 F. 2d 1276 (CA9 1970). Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens. See United States v. Bugarin-Casas, 484 F. 2d 853 (CA9 1973), cert. denied, 414 U. S. 1136 (1974); United States v. Wright, 476 F. 2d 1027 (CA5 1973). The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide. See United States v. Larios-Montes, supra. The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut. Reply Brief for United States 12-13, in United States v. Ortiz, post, p. 891. In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling. Terry v. Ohio, 392 U. S., at 27.

In this case the officers relied on a single factor to justify stopping respondent’s car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.

The judgment of the Court of Appeals is

Affirmed.

[For opinion of The Chief Justice concurring in the judgment, see post, p. 899.]

[For opinion of Mr. Justice White concurring in the judgment, see post, p. 914.]

Mr. Justice Rehnquist,

concurring.

I join in the opinion of the Court. I think it quite important to point out, however, that that opinion, which is joined by a somewhat different majority than that which comprised the Almeida-Sanchez Court, is both by its terms and by its reasoning concerned only with the type of stop involved in this case. I think that just as travelers entering the country may be stopped and searched without probable cause and without founded suspicion, because of “national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in,” Carroll v. United States, 267 U. S. 132, 154 (1925), a strong case may be made for those charged with the enforcement of laws conditioning the right of vehicular use of a highway to likewise stop motorists using highways in order to determine whether they have met the qualifications prescribed by applicable law for such use. See Cady v. Dombrowski, 413 U. S. 433, 440-441 (1973); United States v. Biswell, 406 U. S. 311 (1972). I regard these and similar situations, such as agricultural inspections and highway roadblocks to apprehend known fugitives, as not in any way constitutionally suspect by reason of today’s decision.

Mr. Justice Douglas,

concurring in the judgment.

I join in the affirmance of the judgment. The stopping of respondent’s automobile solely because its occupants appeared to be of Mexican ancestry was a patent violation of the Fourth Amendment. I cannot agree, however, with the standard the Court adopts to measure the lawfulness of the officers’ action. The Court extends the “suspicion” test of Terry v. Ohio, 392 U. S. 1 (1968), to the stop of a moving automobile. I dissented from the adoption of the suspicion test in Terry, believing it an unjustified weakening of the Fourth Amendment’s protection of citizens from arbitrary interference by the police. I remarked then:

“The infringement on personal liberty of any 'seizure’ of a person can only be 'reasonable’ under the Fourth Amendment if we require the police to possess 'probable cause’ before they seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.” Id., at 38.

The fears I voiced in Terry about the weakening of the Fourth Amendment have regrettably been borne out by subsequent events. Hopes that the suspicion test might be employed only in the pursuit of violent crime — a limitation endorsed by some of its proponents — have now been dashed, as it has been applied in narcotics investigations, in apprehension of “illegal” aliens, and indeed has come to be viewed as a legal construct for the regulation of a general investigatory police power. The suspicion test has been warmly embraced by law enforcement forces and vigorously employed in the cause of crime detection. In criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked:

“ ‘Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim.1 ” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 395 (1974).

The uses to which the suspicion test has been put are illustrated in some of the cases cited in the Court’s opinion. In United States v. Wright, 476 F. 2d 1027 (CA5 1973), for example, immigration officers stopped a station wagon near the border because there was a spare tire in the back seat. The court held that the officers reasonably suspected that the spare wheel well had been freed in order to facilitate the concealment of aliens. In United States v. Bugarin-Casas, 484 F. 2d 853 (CA9 1973), the Border Patrol officers encountered a man driving alone in a station wagon which was “riding low”; stopping the car was held reasonable because the officers suspected that aliens might have been hidden beneath the floorboards. The vacationer whose car is weighted down with luggage will find no comfort in these decisions; nor will the many law-abiding citizens who drive older vehicles that ride low because their suspension systems are old or in disrepair. The suspicion test has indeed brought a state of affairs where the police may stop citizens on the highway on the flimsiest of ■justifications.

The Court does, to be sure, disclaim approval of the particular decisions it cites applying the suspicion test. But by specifying factors to be considered without attempting to explain what combination is necessary to satisfy the test, the Court may actually induce the police to push its language beyond intended limits and to advance as a justification any of the enumerated factors even where its probative significance is negligible.

Ultimately the degree to which the suspicion test actually restrains the police will depend more upon what the Court does henceforth than upon what it says today. If my Brethren mean to give the suspicion test a new bite, I applaud the intention. But in view of the developments since the test was launched in Terry, I am not optimistic. This is the first decision to invalidate a stop on the basis of the suspicion standard. In fact, since Terry we have granted review of a case applying the test only once, in Adams v. Williams, 407 U. S. 143 (1972), where the Court found the standard satisfied by the tip from an informant whose credibility was not established and whose information was not shown to be based upon personal knowledge. If in the future the suspicion test is to provide any meaningful restraint of the police, its force must come from vigorous review of its applications, and not alone from the qualifying language of today’s opinion. For now, I remain unconvinced that the suspicion test offers significant protection of the “comprehensive right of personal liberty in the face of governmental intrusion,” Lopez v. United States, 373 U. S. 427, 455 (1963) (dissenting opinion), that is embodied in the Fourth Amendment.

       For the Court of Appeals’ purposes, the distinction between a roving patrol and a fixed checkpoint was controlling. The court previously had held that the principles of Almeida-Sanchez v. United States applied retrospectively to the activities of roving patrols but not to those of fixed checkpoints. See United States v. Peltier, 500 F. 2d 985 (CA9 1974), rev’d, ante, p. 531; United States v. Bowen, 500 F. 2d 960 (CA9 1974), aff’d, post, p. 916.

       There may be room to question whether voluntary testimony of a witness at trial, as opposed to a Government agent’s testimony about objects seized or statements overheard, is subject to suppression as the fruit of an illegal search or seizure. See United States v. Guana-Sanchez, 484 F. 2d 590 (CA7 1973), cert. dismissed as improvidently granted, 420 U. S. 513 (1975). But since the question was not raised in the petition for certiorari, we do not address it.

       We cannot accept respondent’s contention that, even though § 287 (a) (3) does not mention probable cause, its legislative history establishes that Congress meant to condition immigration officers’ authority to board and search vehicles on probable cause to believe that they contained aliens. The legislative history simply does not support this contention.

       The estimate of one million was produced by the Commissioner of the INS for the Immigration and Nationality Subcommittee of the House Judiciary Committee. Hearings on Illegal Aliens before Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 2d Sess., ser. 13, pt. 5, pp. 1323-1325 (1972). The higher estimate appears in the INS Ann. Rep. iii (1974).

       This estimate tends to be confirmed by the consistently high proportion of Mexican nationals in the number of deportable aliens arrested each year. In 1970, for example, 80% of the deportable' aliens arrested were from Mexico. See INS Ann. Rep. 95 (1970). In 1974, the figure was 92%. INS Ann. Rep. 94 (1974).

       In this case the officers did search respondent’s car, but because they found no other incriminating evidence the validity of the search is not in issue. Almeida-Sanchez changed the Border Patrol’s practice of searching cars on routine stops, and the Government informs us that roving patrols now search vehicles only when they have probable cause to believe they will find illegally present aliens or contraband. Brief for United States 25.

       Because the stop in this case was made without a warrant and the officers made no effort to obtain one, we have no occasion to decide whether a warrant could be issued to stop cars in a designated area on the basis of conditions in the area as a whole and in the absence of reason to suspect that any particular car is carrying aliens. See Almeida-Sanchez, 413 U. S., at 275 (Powell, J., concurring); Camara v. Municipal Court, 387 U. S. 523 (1967).

       Our decision in this case takes into account the special function of the Border Patrol, the importance of the governmental interests in policing the border area, the character of roving-patrol stops, and the availability of alternatives to random stops unsupported by reasonable suspicion. Border Patrol agents have no part in enforcing laws that regulate highway use, and their activities have nothing to do with an inquiry whether motorists and their vehicles are entitled, by virtue of compliance with laws governing highway usage, to be upon the public highways. Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are necessary to enforce laws regarding drivers’ licenses, vehicle registration, truck weights, and similar matters.

       As noted above, we reserve the question whether Border Patrol officers also may stop persons reasonably believed to be aliens when there is no reason to believe they are illegally in the country. See Cheung Tin Wong v. INS, 152 U. S. App. D. C. 66, 468 F. 2d 1123 (1972); Au Yi Lau v. INS, 144 U. S. App. D. C. 147, 445 F. 2d 217, cert. denied, 404 U. S. 864 (1971). The facts of this case do not require decision on the point.

       The Courts of Appeals decisions cited throughout this part are merely illustrative. Our citation of them does not imply a view of the merits of particular decisions. Each case must turn on the totality of the particular circumstances.

       The Government also argues that the location of this stop should be considered in deciding whether the officers had adequate reason to stop respondent’s car. This appears, however, to be an after-the-fact justification. At trial the officers gave no reason for the stop except the apparent Mexican ancestry of the car’s occupants. It is not even clear that the Government presented the broader justification to the Court of Appeals. We therefore decline at this stage of the case to give any weight to the location of the stop.

       The 1970 census and the INS figures for alien registration in 1970 provide the following information about the Mexiean-American population in the border States. There were 1,619,064 persons of Mexican origin in Texas, and 200,004 (or 12.4%) of them registered as aliens from Mexico. In New Mexico there were 119,049 persons of Mexican origin, and 10,171 (or 8.5%) registered as aliens. In Arizona there were 239,811 persons of Mexican origin, and 34,075 (or 14.2%) registered as aliens. In California there were 1,857,267 persons of Mexican origin, and 379,951 (or 20.4%) registered as aliens. Bureau of the Census, Subject Report PC (2)-lC: Persons of Spanish Origin 2 (1970): INS Ann. Rep. 105 (1970). These figures, of course, do not present the entire picture. The number of registered aliens from Mexico has increased since 1970, INS Ann. Rep. 105 (1974), and we assume that very few illegal immigrants appear in the registration figures. On the other hand, many of the 950,000 other persons of Spanish origin living in these border States, see Bureau of the Census, swpra, at 1, may have a physical appearance similar to persons of Mexican origin.

      See LaFave, “Street Encounters” and the Constitution, 67 Mich. L. Rev. 39, 66-66 (1968).