text:
    NATIONAL FARMERS UNION INSURANCE COMPANIES et al. v. CROW TRIBE OF INDIANS et al.
    No. A-123 (84-320).
    Decided September 10, 1984
   Justice Rehnquist, Circuit Justice.

Applicants National Farmers Union Insurance Cos. and Lodge Grass School District No. 27 request that I stay the mandate of the United States Court of Appeals for the Ninth Circuit which reversed the judgment of the United States District Court for the District of Montana. The latter court had enjoined the Crow Tribe of Indians from executing against the applicants on a judgment rendered by the Crow Tribal Court. The Court of Appeals for the Ninth Circuit held, as I read its opinion, that litigants who seek to challenge the exercise of jurisdiction by an Indian tribal court in a civil action have no federal-court remedy of any kind. I have concluded that four Members of this Court are likely to vote to grant the applicants’ petition for certiorari, and that the applicants have a reasonable probability for at least partial success on the merits if this Court grants certiorari. I have therefore decided that the temporary stay I earlier granted on August 21, 1984, pending consideration of a response, should be continued until this Court disposes of the applicants’ petition for certiorari which was filed on August 29th.

In May 1982, Leroy Sage, a Crow Indian schoolchild, was struck by an uninsured motorcyclist on the property owned by applicant School District. The school is located on land within the external boundaries of the Crow Indian Reservation, but the land is owned by the State of Montana in fee subject to a reserved mineral interest in the Tribe. Sage sustained a broken leg, and filed suit against the School District in Crow Tribal Court.

Dexter Falls Down served process for Sage upon Wesley Falls Down; Wesley was a member of the school board. Wesley did not notify anyone of the summons and a default judgment for $153,000 was entered against the school three weeks later in Tribal Court. Actual medical bills came to $3,000. Applicants became aware of the suit when the Tribal Court mailed a copy of the judgment to the school. Instead of seeking review of the default judgment in Tribal Court, applicants filed suit in the United States District Court for the District of Montana, alleging that the Tribal Court’s exercise of jurisdiction violated due process and the Indian Civil Rights Act of 1968, 82 Stat. 77, as amended, 25 U. S. C. § 1301 et seq. Applicants sought a permanent injunction against the execution of the Tribal Court judgment.

The District Court held that applicants’ complaint, based on federal common law, stated a claim under 28 U. S. C. §1331. 560 F. Supp. 213, 214-215 (1983). The District Court held that the Tribal Court lacked subject-matter jurisdiction over Sage’s claim, because the land upon which the tort had occurred was not Indian land, and the defendants were not tribal members. The District Court relied on our decision in Montana v. United States, 450 U. S. 544, 565-566 (1981), in reaching this conclusion.

The Tribe appealed to the Court of Appeals for the Ninth Circuit, and that court reversed over a partial dissent. 736 F. 2d 1320, 1322 (1984). The Court of Appeals reasoned on the authority of one of its prior decisions that “Indian tribes are not constrained by the provisions of the fourteenth amendment.” It went on to determine that tribes are bound by the provisions of the Indian Civil Rights Act, 25 U. S. C. § 1301 et seq., and that § 202(8) of this Act, 25 U. S. C. § 1302(8), requires that tribal courts exercise their jurisdiction in a manner consistent with due process and equal protection. But the court then concluded that since Congress had expressly limited federal-court review of a claimed violation of the ICRA to a single remedy — the writ of habeas corpus — there could be no federal-court review of any tribal court exercise of jurisdiction in a civil case. The Court of Appeals for the Ninth Circuit relied in part on our decision in Santa Clara Pueblo v. Martinez, 436 U. S. 49, 66-70 (1978), to reach this conclusion. The Court of Appeals recognized that our decision in Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), had relied on principles of federal common law to determine whether a tribal court had exceeded its jurisdiction, but decided that our opinion the same Term in Santa Clara Pueblo, supra, suggested a restriction on federal-court review of Indian tribal jurisdiction as a result of the ICRA. The Court of Appeals observed in a footnote that “[s]hould Sage seek to enforce his default judgment in the courts of Montana, National may, of course, challenge the tribal court’s jurisdiction in the collateral proceedings. See generally Durfee v. Duke, 375 U. S. 106 . . . (1963).” 736 F. 2d, at 1324, n. 6.

It is clear from proceedings in this case subsequent to the handing down of the opinion of the Court of Appeals that the respondents in this case have no intention of resorting to any state-court proceedings in order to enforce the judgment of the Crow Tribal Court. After the issuance of the mandate of the Court of Appeals, tribal officials, at the behest of respondent Sage, seized 12 computer terminals, other computer equipment, and a truck from the School District. The basis for this seizure was said to be the Tribal Court judgment, and no state process was invoked.

If the Court of Appeals is correct in the conclusions which it drew in its opinion, the state of the law respecting review of jurisdictional excesses on the part of Indian tribal courts is indeed anomalous. The Court of Appeals may well be correct that tribal courts are not constrained by the Due Process or Equal Protection Clauses of the Fourteenth Amendment; long ago, this Court said in United States v. Kagama, 118 U. S. 375, 379 (1886), and repeated the statement as recently as Oliphant v. Suquamish Indian Tribe, supra, at 211:

“‘Indians are within the geographical limits of the United States. The soil and people within these limits are under the political control of the Government of the United States, or the States of the Union. There exist in the broad domain of a sovereignty but these two.”’

But if because only the National and State Governments exercise true sovereignty, and are therefore subject to the commands of the Fourteenth Amendment, I cannot believe that Indian tribal courts are nonetheless free to exercise their jurisdiction in a manner prohibited by the decisions of this Court, and that a litigant who is the subject of such an exercise of jurisdiction has nowhere at all to turn for relief from a conceded excess. Every final decision of the highest court of a State in which such a decision may be had is subject to review by this Court on either certiorari or appeal. 28 U. S. C. § 1257. Every decision of a United States district court or of a court of appeals is reviewable by this Court either by way of appeal or by certiorari. §§ 1252-1254; cf. § 1291. If the courts of the States, which in common with the National Government exercise the only true sovereignty exercised within our Nation, Kagama, supra, are to have their judgments reviewed by this Court on a claim of erroneous decision of a federal question, it is anomalous that no federal court, to say nothing of a state court, may review a judgment of an Indian tribal court which likewise erroneously decides a federal question as to the extent of its jurisdiction. See Montana v. United States, supra. It may be that Congress could provide for such a result, but I have a good deal more doubt than did the Court of Appeals that it has done so.

Our decision in Santa Clara Pueblo v. Martinez, supra, which the Court of Appeals read to support its conclusion, raised the question of whether a federal court could pass on the validity of an Indian Tribe’s ordinance denying membership to the children of certain female tribal members. We held that the ICRA did not imply a private cause of action to redress violations of the statutory Bill of Rights contained in the Act, and that therefore the validity of the tribal ordinance regulating membership could not be reviewed in federal court. It seems to me that this holding, relating as it did to the relationship between the right of a Tribe to regulate its own membership and the claims of those who had been denied membership, is quite distinguishable from a claim on the part of a non-Indian that a tribal court has exceeded the bounds of tribal jurisdiction as enunciated in such decisions of this Court as Montana v. United States, supra. As Justice White pointed out in his dissent in Santa Clara Pueblo v. Martinez, 436 U. S., at 72, “[t]he declared purpose of the Indian Civil Rights Act ... is ‘to insure that the American Indian is afforded the broad constitutional rights secured to other Americans.’” But as the Court also pointed out in its opinion, Congress entertained the additional purpose of promoting “the well-established federal ‘policy of furthering Indian self-government.’” Id., at 62. The facts as well as the holding of Santa Clara Pueblo, supra, satisfy me that Congress’ concern in enacting the ICRA was to enlarge the rights of individual Indians as against the tribe while not unduly infringing on the right of tribal self-government. The fact that no private civil cause of action is to be implied under the ICRA, Santa Clara Pueblo, supra, does not to my mind foreclose the likelihood that federal jurisdiction may be invoked by one who claims to have suffered from an excess beyond federally prescribed jurisdictional limits of an Indian tribal court on the basis of federal common law. See, e. g., Illinois v. City of Milwaukee, 406 U. S. 91, 99-100 (1972). We said in Oliphant v. Suquamish Indian Tribe, 435 U. S., at 206:

“ ‘Indian law’ draws principally on the treaties drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them.”

I think a fair reading of all of our case law on this subject could lead to the conclusion that even though the ICRA affords no private civil cause of action to one claiming a violation of its terms, “Indian law” as of the time that law was enacted afforded a basis for review of tribal-court judgments claimed to be in excess of tribal-court jurisdiction.

Respondents insist that under Rule 44.2 of this Court a supersedeas bond should have accompanied applicants’ request for a stay. That Rule provides:

“If the stay is to act as a supersedeas, a supersedeas bond shall accompany the motion and shall have such surety or sureties as said judge, court, or Justice may require.”

I do not think that the Rule is by its terms applicable to this case. The term “supersedeas” to me suggests the order of an appellate court having authority to review on direct appeal the judgment which is superseded. All of the proceedings in the various federal courts in this case have, of course, sought no direct review of the Tribal Court judgment, which simply is not provided for by statute at all, but collateral relief. The District Court did not review the judgment of the Indian Tribal Court by way of appeal, but instead enjoined its enforcement.

It may well be that under the Federal Rules of Civil Procedure respondents would have a plausible argument to make to the District Court that an injunction bond serving somewhat the same purposes as a supersedeas bond should be required by that court so long as its injunction remains in effect. Whether such a bond should be required of either party in this case, and whether in particular it should be required of applicant Lodge Grass School District No. 27 in view of the fact that apparently under Montana law a public body is not required to post a supersedeas bond in a state-court proceeding, is an issue best left in the first instance to the District Court.

As to whether, if I am right in thinking that this Court may well decide that tribal-court judgments are subject to federal-court review for claims of jurisdictional excess, applicants would necessarily prevail, I express no opinion. The District Court held in their favor on this point, but the Court of Appeals for the Ninth Circuit found no necessity for reaching it since it held that there was no federal jurisdiction to consider it. The District Court in its opinion quoted F. Cohen, Handbook of Federal Indian Law 253 (1982), to the effect that “‘the extent of Tribal civil jurisdiction over the non-Indian is not fully determined.’” 560 F. Supp., at 218. The District-Court, in reaching the conclusion it did, relied on the following language from our opinion in United States v. Montana:

“To be sure, Indian Tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements. ... A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U. S., at 565-566.

The court concluded that exercise of tribal jurisdiction over an injury to a tribal member occurring on non-Indian-owned fee land within the boundaries of the reservation was not within the description of Indian tribal jurisdiction. I express no opinion as to what the correct answer to this inquiry may be. I do think its correct decision is of far less importance than the correct decision of the more fundamental question of whether there is any federal-court review available to non-Indians for excesses of tribal-court jurisdiction.

It is so ordered.


source: Caselaw Access Project

author: Justice Rehnquist, Circuit Justice.

license: Public Domain

text:
    WALTERS, ADMINISTRATOR OF VETERANS AFFAIRS, et al. v. NATIONAL ASSOCIATION OF RADIATION SURVIVORS et al.
    No. A-214.
    Decided September 27, 1984
   Justice Rehnquist, Circuit Justice.

Applicants request that I stay an injunction issued by the United States District Court for the Northern District of California prohibiting on constitutional grounds the enforcement of 38 U. S. C. §§3404 and 3405. These sections prohibit the payment of a fee of more than $10 by a veteran to an agent or attorney in connection with a claim for monetary benefits under laws administered by the Veterans Administration.

The statute which the single District Judge found unconstitutional has been on the books in some form for 122 years. Within the past decade, this Court has summarily affirmed a decision of a three-judge District Court upholding the constitutionality of 38 U. S. C. § 3404(c). Gendron v. Levi, 423 U. S. 802 (1975), aff’g Gendron v. Saxby, 389 F. Supp. 1303 (CD Cal.). The Court of Appeals for the Ninth Circuit has also recently upheld the validity of § 3404(c). Demarest v. United States, 718 F. 2d 964 (1983), cert. denied, 466 U. S. 950 (1984).

The application for a stay is granted. Respondents urge that the balance of hardships militates against the granting of a stay. It would take more than the respondents have presented in their response, however, to persuade me that the action of a single District Judge declaring unconstitutional an Act of Congress that has been on the books for more than 120 years should not be stayed pending consideration of the jurisdictional statement of applicants by this Court. The presumption of constitutionality which attaches to every Act of Congress is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships. Marshall v. Barlow’s, Inc., 429 U. S. 1347 (1977) (Rehnquist, J., in chambers).

The application for a stay is accordingly granted pending the timely filing of a jurisdictional statement and the disposition of the same by this Court.


author: Per Curiam. Justice Stevens,

text:
    FLORIDA v. RODRIGUEZ
    No. 83-1367.
    Decided November 13, 1984
   Per Curiam.

Respondent Damasco Vincente Rodriguez was charged in a Florida state trial court with possession of cocaine with intent to distribute. The State claimed that on September 12, 1978, he had attempted to transport three pounds of cocaine contained in his luggage through the Miami International Airport. Cocaine seized from the respondent following an examination of his luggage at the airport was suppressed by the Florida trial court on the grounds that respondent’s rights under the Fourth and Fourteenth Amendments to the United States Constitution had been violated by the search. The Florida District Court of Appeal affirmed the judgment in a per curiam opinion, citing its earlier decision in State v. Battleman, 374 So. 2d 636 (1979). State v. Rodriguez, 389 So. 2d 4 (1980). This Court originally denied certiorari, Florida v. Rodriguez, 451 U. S. 1022 (1981), but two years later granted rehearing and remanded the case to the Florida District Court of Appeal for reconsideration in the light of our opinions in Florida v. Royer, 460 U. S. 491 (1983). Florida v. Rodriguez, 461 U. S. 940 (1983). The Florida District Court of Appeal again affirmed the suppression of the evidence in a one-word order, 443 So. 2d 995 (1983), and the State has again petitioned for certiorari. Because of the Florida court’s suppression of the evidence against him prior to trial, respondent has never been tried for the drug offense with which he was charged, and his former attorneys have advised this Court that he is currently a fugitive from justice.

The only witness to testify at the suppression hearing was Officer Charles McGee, who was a police officer with the Dade County Public Safety Department. McGee testified that he had received about 40 hours of narcotics training in the police academy and, after being assigned to the Narcotics Squad, a 5-week course from the Organized Crime Bureau, which included one-and-one-half to two weeks of training in narcotic surveillance and drug identification. He had received further training under the auspices of the Drug Enforcement Administration, and at the time of his testimony he had 18 months’ experience with the airport unit. He also testified that Miami was a “source city” for narcotics.

McGee testified that he first noticed respondent Rodriguez at the National Airlines ticket counter in the Miami Airport shortly after noon on September 12, 1978. McGee’s attention was drawn to respondent by the fact that he and two individuals later identified as Blanco and Ramirez behaved in an unusual manner while leaving the National Airlines ticket counter in the Miami Airport. McGee and Detective Facchiano, who were both in plain clothes, followed respondent, Ramirez, and Blanco from the ticket counter to the airport concourse from which National Airlines flights departed. Ramirez and Blanco stood side by side on an escalator, and respondent stood directly behind them. The detectives observed Ramirez and Blanco converse with one another, although neither spoke to respondent. At the top of the escalator stairs, Blanco looked back and saw the detectives; he then spoke in a lower voice to Ramirez. Ramirez turned around and looked directly at the detectives, then turned his head back very quickly and spoke to Blanco.

As the three cohorts left the escalator single file, Blanco turned, looked directly at respondent, and said, “Let’s get out of here.” He then repeated in a much lower voice, “Get out of here.” Respondent turned around and caught sight of the detectives. He attempted to move away, in the words of Officer McGee, “His legs were pumping up and down very fast and not covering much ground, but the legs were as if the person were running in place.” App. to Pet. for Cert. 49. Finding his efforts at flight unsuccessful, respondent confronted Officer McGee and uttered a vulgar exclamation.

McGee then showed his badge and asked respondent if they might talk. Respondent agreed, and McGee suggested that they move approximately 15 feet to where Blanco and Ramirez were standing with Facchiano, who now also had identified himself as a police officer.

They remained in the public area of the airport. McGee asked respondent if he had some identification and an airline ticket. Respondent said that he did not, but Ramirez then handed McGee a cash ticket with three names on it — Martinez, Perez, and Rodriguez. In the ensuing discussion, McGee asked respondent what his name was and he replied “Rodriguez”; McGee then asked Blanco what his name was and he, too, answered “Rodriguez.” Blanco later identified himself correctly. At this point, the officers informed the suspects that they were narcotics officers, and they asked for consent to search respondent’s luggage. Respondent answered that he did not have the key, but Ramirez told respondent that he should let the officers look in the luggage, which prompted respondent to hand McGee the key. McGee found three bags of cocaine in the suit bag, and arrested the three men. McGee testified that until he found the cocaine, the three men were free to leave. He also testified that he did not advise respondent that he could refuse consent to the search.

The order of the Florida trial court granting the motion to suppress the cocaine reads as follows:

“1. There was no reason to stop the defendant, Da-masco Vincente Rodriguez. The Defendant did nothing which would arouse an articulable suspicion in the eyes of Detective McGee and Detective Facchiano.
“2. Due to the laek of telling the Defendant he had a right to leave, and the lack of telling the Defendant he had a right to refuse to consent to a search, there was an insufficient showing that the consent herein was completely untainted due to the lack of the two things previously mentioned.
“3. The statement made by the Defendant’s companion did not overcome the taint from the initial illegal stop of the Defendant.” App. to Pet. for Cert. 89-90.

We think that the trial court’s order as affirmed by the District Court of Appeal reflects a misapprehension of the controlling principles of law governing airport stops enunciated by this Court in United States v. Mendenhall, 446 U. S. 544 (1980), and Florida v. Royer, 460 U. S. 491 (1983). Because its ruling was made in May 1979, the trial court obviously cannot be faulted for lack of familiarity with these opinions, but the District Court of Appeal’s final affirmance of the suppression order on remand from this Court occurred on November 15, 1983, after these opinions had been issued. We think the trial court’s order also reflects a misapprehension of legal principles enunciated in Schneckloth v. Bustamonte, 412 U. S. 218 (1973).

Certain constraints on personal liberty that constitute “seizures” for purposes of the Fourth Amendment may nonetheless be justified even though there is no showing of “probable cause” if “there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, supra, at 498 (opinion of White, J.). Such a temporary detention for questioning in the case of an airport search is reviewed under the lesser standard enunciated in Terry v. Ohio, 392 U. S. 1 (1968), and is permissible because of the “public interest involved in the suppression of illegal transactions in drugs or of any other serious crime.” Royer, supra, at 498-499.

The initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest. United States v. Mendenhall, supra, at 554 (opinion of Stewart, J.); Florida v. Royer, supra, at 497 (opinion of White, J.). Assuming, without deciding, that after respondent agreed to talk with the police, moved over to where his cohorts and the other detective were standing, and ultimately granted permission to search his baggage, there was a “seizure” for purposes of the Fourth Amendment, we hold that any such seizure was justified by “articulable suspicion.”

Before the officers even spoke to the three confederates, one by one they had sighted the plainclothes officers and had spoken furtively to one another. One was twice overheard urging the others to “get out of here.” Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion, and so did the contradictory statements concerning the identities of Blanco and respondent. Officer McGee had special training in narcotics surveillance and apprehension; like members of the Drug Enforcement Administration, the Narcotics Squad of the Dade County Public Safety Department is “carrying out a highly specialized law enforcement operation designed to combat the serious societal threat posed by narcotics distribution.” United States v. Mendenhall, supra, at 562 (Powell, J., concurring in part and concurring in judgment). Respondent “was approached in a major international airport where, due in part to extensive antihijacking surveillance and equipment, reasonable privacy expectations are of significantly lesser magnitude . . . .” Florida v. Royer, supra, at 515 (Blackmun, J., dissenting).

We hold, therefore, that the trial court was incorrect both in its conclusion that there was no articulable basis for detaining respondent and in its conclusion that there was “taint” resulting from this initial stop. In Schneckloth v. Bustamonte, supra, we held that the State need not prove that a defendant consenting to a search knew that he had the right to withhold his consent, although we also held that knowledge of the right to refuse consent could be taken into account in determining whether or not a consent was “voluntary.” We are unable to determine from the trial court’s opinion whether its conclusion with respect to the voluntariness of the consent to search the luggage would have been the same had it correctly applied the governing legal principles embodied in the Fourth Amendment.

The petition for writ of certiorari is therefore granted, the judgment of the Florida Court of Appeal is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Marshall dissents.

Justice Stevens,

with whom Justice Brennan joins,

dissenting.

With increasing frequency this Court seems prone to disregard important differences between cases that come to us from state tribunals and those that arise in the federal system. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 970 (1984) (Stevens, J., concurring). As the Court of last resort in the federal system, we have supervisory authority and therefore must occasionally perform a pure error-correcting function in federal litigation. We do not have comparable supervisory responsibility to correct mistakes that are bound to occur in the thousands of state tribunals throughout the land. The unusual action the Court takes today illustrates how far the Court may depart from its principal mission when it becomes transfixed by the specter of a drug courier escaping the punishment that is his due.

I

Some five years ago a Florida trial judge conducted the suppression hearing in this case and a county narcotics officer testified at some length. The transcript contains a somewhat improbable account of the respondent either running in place or frantically running in circles in the presence of the agent, and the agent identifying himself to the respondent as a police officer in order to be sure he would not be mistaken for a member of the Hare Krishna.

After hearing all of the officer’s testimony, the trial judge stated:

“Counsel, I am going to rule as a matter of fact that they did nothing wrong, that there was no reason to stop these men for contact or for any other reason at that point in time. The whole case hinges on whether or not there was consent given subsequent to that time. Let me hear your argument to that.” Tr. 104.

After hearing argument, the judge ruled that respondent had not voluntarily consented to a search of his luggage. In making that ruling, the judge relied, in part, on the fact that the narcotics agent had not advised the respondent that he had a right to refuse to consent to the search.

Today this Court holds (1) that the officer did have an “articulable suspicion” that justified a temporary seizure of respondent’s person; and (2) that the trial judge did not articulate a legally sufficient basis for his conclusion that respondent did not voluntarily consent to the search of his bag. Accordingly, the Court remands the case to the Florida District Court of Appeal for further proceedings.

To understand the unusual nature of this disposition, it is necessary to comment on some of the events that have transpired in this litigation during the past five years.

II

On September 23, 1980, after full argument, the District Court of Appeal of Florida for the Third District filed an opinion which reads in its entirety as follows:

“Per Curiam.
“Affirmed on the authority of State v. Battleman, 374 So. 2d 636 (Fla. 3d DCA 1979).” State v. Rodriguez, 389 So. 2d 4.

The Florida Attorney General did not ask the Florida Supreme Court to review that decision. He did not do so because the Florida appellate system has been carefully structured to enable the State’s highest court to concentrate on matters of greater public importance than the possibility that a trial judge’s error might not have been corrected by the intermediate court of appeal. As the Florida Supreme Court explained in a 1958 opinion:

“We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. . . . The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.” Ansin v. Thurston, 101 So. 2d 808, 810, quoted with approval in Jenkins v. State, 385 So. 2d 1356, 1357 (Fla. 1980).

Recognizing that the Florida Supreme Court does not provide a forum for error-correcting review of lower court judgments in that State’s judicial system, the Florida Attorney General instead filed a petition for writ of certiorari in this Court. Because the petition did not present any question of general significance, on May 26, 1981, this Court wisely denied certiorari. Florida v. Rodriguez, 451 U. S. 1022. Presumably because they were convinced that error had been committed, three Members of the Court dissented from that disposition and stated that they “would grant certiorari and reverse the judgment.” Ibid. The Attorney General of Florida then filed a timely petition for rehearing.

III

Rule 51.2 of this Court’s Rules requires that the grounds set forth in a petition for rehearing “must be limited to intervening circumstances of substantial or controlling effect or to other substantial grounds not previously presented.” The principal ground advanced by Florida in its petition for rehearing was that a succession of clearly erroneous per curiam decisions of the State District Court of Appeal was having a devastating effect on its prosecutions. As an “intervening circumstance,” it noted that the State had filed a petition for certiorari in Florida v. Royer, 460 U. S. 491 (1983). In my opinion neither of these grounds satisfied the terms of our Rule. In any event, the petition for a rehearing remained on the Court’s docket for the next two years.

Rule 51.3 provides that no petition for a rehearing will be granted without an opportunity to submit a response. In 1983, when respondent was at long last asked to respond to the State’s petition, we learned that he was a fugitive from justice and no longer was represented by counsel. On May 23, 1983, the Court entered an order granting the petition for rehearing, vacating the judgment of the District Court of Appeal and remanding the case to that court for reconsideration in the light of our opinions in Florida v. Royer. Florida v. Rodriguez, 461 U. S. 940.

IV

On November 15, 1983, the District Court of Appeal of Florida filed an order which reads, in its entirety, as follows:

“Per Curiam. Affirmed.”

The Attorney General thereafter filed another petition for certiorari in this Court, and today the Court rewards him for this effort. I continue to believe, however, that this case does not present any legal issue warranting review in this Court.

At the time the District Court of Appeal’s opinion was filed, every decision cited in the Court’s opinion today had already been decided. Presumably, the petitioner called all of those cases to the attention of the Florida District Court of Appeal. Since the Court does not purport to announce any new principle of law, it is also fair to presume that the Florida District Court of Appeal was already familiar with the legal principles discussed by the Court today. Thus, the Court performs the error-correcting function that the Florida Supreme Court has refused to perform, and reverses the state court’s judgment by applying settled principles to the facts of this case.

V

The Court’s opinion today is flawed in at least two respects. It is highly unusual for this Court to undertake de novo review of the factual findings of a state court on the “articulable suspicion” issue. My colleagues did not hear the witness testify; they have insufficient time to study the transcript with the care, that is appropriate to credibility determinations; and, indeed, collectively they have only minimal experience in the factfinding profession.

Moreover, the Court’s disposition of the consent issue implicitly assumes that the Florida District Court of Appeal has a duty to explain its reasons for affirming the trial court’s judgment. If that court, upon remand, simply enters another one-word order affirming the trial court’s judgment, I would suppose that this Court would have to interpret the ruling as a determination on the existing record that the respondent did not voluntarily consent to the search of his luggage. A petition for certiorari on that question would present “a fact-bound issue of little importance. ” Massachusetts v. Sheppard, 468 U. S. 981, 988, n. 5 (1984). If we presume, as I think we should, that the judges of that court were already familiar with the cases discussed in this Court’s opinion, I do not understand why we should not make the same assumption on the record as it presently exists.

VI

There is a certain irony in the fact that respondent is a fugitive from justice. If he is apprehended, he probably will be punished for his flight from justice even if the suppression order is ultimately upheld. Perhaps this Court’s tireless efforts to bring this one man to justice will result in convictions on both counts. In either event, I believe this Court should abandon its error-correcting role in cases on direct review from state courts. Instead, the Court ought to take a lesson from the Supreme Court of Florida and focus its attention on issues of overriding importance to the administration of justice. The single-minded achievement of results in individual cases is not a virtue that should characterize the work of this Court.

I respectfully dissent.

       “THE WITNESS: He was moving in a direction to the left. His legs were pumping up and down very fast and not covering much ground, but the legs were as if the person were running in place. You might say moving slightly to the left. There’s a wall or partition there. He ran through that partition and in the area just enclosed off.
      “THE COURT: Did he run or walk?
      “THE WITNESS: Neither. He was pumping up and down.
      “THE COURT: You said he ran up a minute ago. Did he go from a walk to pumping to a run?
      “THE WITNESS: Well, Your Honor, I don’t know what the right word would be, but his feet are running up and down but he ain’t going nowhere except a little at a time.
      “Do you understand what I’m saying?
      “[THE PROSECUTOR:] Detective McGee, can you come down from the witness stand and show us.
      “THE COURT: Like running in place?
      “THE WITNESS: Sort of like this (indicating).
      “To demonstrate, he was stamping with his suitcase and shoulder bag when the guy told him in a strained tone to get out of here. He turned and looked at me. He was going like that. He didn’t know what to do. He was just going crazy. His feet was going up and down and he was moving, but—
      “THE COURT: All right. Have a seat.
      “[THE WITNESS:] He then turned and came back out and passed me again still in the same pumping fashion and went to the other side of the escalator to my right. I am standing there just watching the guy running around in circles.
      “THE COURT: Maybe that’s the way he walks.” Tr. 52-54.

       “[THE WITNESS:] I identified myself as a police officer for a couple of purposes: Because the observations I had made, number one; number two, so that at the airport when we do in fact ask someone to talk to us, we properly identify ourselves so they do not think we are Hare Krishnas or someone trying to rip them off or something in that manner.
      “We identify ourselves as a police officer. I do so to show my respectability of the person and in fact that I would just like to hold some conversation with him.
      “THE COURT: Don’t Hare Krishnas usually have their heads shaved?” Id., at 64-65.

       The suggestion of summary reversal by the three Justices underscores the point that no one has ever considered this case worthy of plenary review by this Court.

       Because the District Court of Appeal’s decision in this case was rendered without any statement of reasons, it does not “expressly” decide a constitutional question or “expressly” conflict with other authority as the jurisdictional provision in the Florida Constitution requires for discretionary review in the Florida Supreme Court. Fla. Const., Art. V, § 3(b)(3). See Jenkins v. State, 385 So. 2d 1356, 1357 (Fla. 1980).


text:
    UNITED STATES DEPARTMENT OF JUSTICE et al. v. PROVENZANO
    No. 83-1045.
    Decided November 26, 1984

      Together with No. 83-5878, Shapiro et al. v. Drug Enforcement Administration, on certiorari to the United States Court of Appeals for the Seventh Circuit.

   Per Curiam.

These two cases, when they were filed here, presented the issue whether Exemption (j)(2) of the Privacy Act of 1974, 5 U. S. C. §552a(j)(2), is a withholding statute within the third exemption of the Freedom of Information Act (FOIA), 5 U. S. C. § 552(b)(3). Because the Courts of Appeals below had decided the issue oppositely, 717 F. 2d 799 (CA3), on rehearing, 722 F. 2d 36 (1983); 721 F. 2d 215 (CA7 1983), and the conflict deserved resolution, we granted certiorari in both cases and consolidated them for oral argument. 466 U. S. 926 (1984). See also Greentree v. U. S. Customs Service, 218 U. S. App. D. C. 231, 674 F. 2d 74 (1982).

The parties now advise us that on October 15, 1984, the President signed into law the Central Intelligence Information Act, Pub. L. 98-477, 98 Stat. 2209, which, by its § 2(c), amended the Privacy Act by adding the following provision:

“No agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 of this title [FOIA].”

Thereafter, Anthony Provenzano, the respondent in No. 83-1045, and Alfred B. Shapiro and Gregory J. Wentz, the petitioners in No. 83-5878, moved for summary affirmance and summary reversal, respectively, of their judgments below. In his turn, the Solicitor General has filed a motion to vacate those judgments and to remand the cases to the respective Courts of Appeals.

The new legislation, as the parties agree, plainly renders moot the single issue with respect to which certiorari was granted in each of these cases. That issue is no longer alive because, however this Court were to decide the issue, our decision would not affect the rights of the parties. These requests for records now are to be judged under the law presently in effect. See DeFunis v. Odegaard, 416 U. S. 312, 316 (1974); North Carolina v. Rice, 404 U. S. 244, 246 (1971).

The mootness of the particular issue that was presented to us, however, does not mean that the cases themselves do not remain alive. Access to agency records is still sought by the individual litigants and, so far as we know, the Government may still assert that the records, or parts thereof, are exempt from disclosure under one or more of the FOIA exemptions. Such matters are better resolved by the courts below in the first instance.

Respondent Provenzano’s motion for summary affirmance of the judgment in No. 83-1045 is therefore denied. The motion of petitioners Shapiro and Wentz for summary reversal of the judgment in No. 83-5878 is also denied. Instead, each of the judgments below is vacated, and the cases are remanded to the United States Courts of Appeals for the Third and Seventh Circuits, respectively, for such further proceedings as are indicated.

It is so ordered.

Justice Stevens,

dissenting in No. 83-1045.

In view of the enactment of the Central Intelligence Information Act, Pub. L. 98-477, 98 Stat. 2209, the petition for writ of certiorari in No. 83-1045 should be dismissed. In my opinion the new Act does not provide a basis for vacating the judgment of the Court of Appeals in that case.


author: Per Curiam.

text:
    THOMPSON v. LOUISIANA
    No. 83-6775.
    Decided November 26, 1984
   Per Curiam.

In this case, the Louisiana Supreme Court upheld the validity of a warrantless “murder scene” search of petitioner’s home. Because this holding is in direct conflict with our opinion in Mincey v. Arizona, 437 U. S. 385 (1978), we reverse.

I

The Louisiana Supreme Court states the facts as follows:

“On May 18, 1982, several deputies from the Jefferson Parish Sheriff’s Department arrived at [petitioner’s] home in response to a report by the [petitioner’s] daughter of a homicide. The deputies entered the house, made a cursory search and discovered [petitioner’s] husband dead of a gunshot wound in a bedroom and the [petitioner] lying unconscious in another bedroom due to an apparent drug overdose. According to the [petitioner’s] daughter, the [petitioner] had shot her husband, then ingested a quantity of pills in a suicide attempt, and then, changing her mind, called her daughter, informed her of the situation and requested help. The daughter then contacted the police. Upon their arrival, the daughter admitted them into the house and directed them to the rooms containing the [petitioner] and the victim. The deputies immediately transported the then unconscious [petitioner] to a hospital and secured the scene. Thirty-five minutes later two members of the homicide unit of the Jefferson Parish Sheriff’s Office arrived and conducted a follow-up investigation of the homicide and attempted suicide.
“The homicide investigators entered the residence and commenced what they described at the motion to suppress hearing as a ‘general exploratory search for evidence of a crime.’ During their search, which lasted approximately two hours, the detectives examined each room of the house.” 448 So. 2d 666, 668 (1984).

Petitioner was subsequently indicted for the second-degree murder of her husband. She moved to suppress three items of evidence discovered during the search, including a pistol found inside a chest of drawers in the same room as the deceased’s body, a torn up note found in a wastepaper basket in an adjoining bathroom, and another letter (alleged to be a suicide note) found folded up inside an envelope containing a Christmas card on the top of a chest of drawers. All of this evidence was found in the “general exploratory search for evidence” conducted by two homicide investigators who arrived at the scene approximately 35 minutes after petitioner was sent to the hospital. See ibid. By the time those investigators arrived, the officers who originally arrived at the scene had already searched the premises for other victims or suspects. See Mincey, supra, at 392. The investigators testified that they had time to secure a warrant before commencing the search, see 448 So. 2d, at 668, and that no one had given consent to the search, see App. C to Pet. for Cert. 7-8, 16, 19-20 (transcript of testimony of Detectives Zinna and Masson at suppression hearing).

The trial court originally denied petitioner’s motion to suppress. However, the trial court then granted petitioner’s motion for reconsideration and partially reversed its former decision, holding that the gun and the suicide letter found in the Christmas card were obtained in violation of the Fourth Amendment and therefore must be suppressed. The Louisiana Court of Appeal denied the State’s application for a writ of review. A sharply divided Louisiana Supreme Court subsequently held all of the evidence seized to be admissible.

II

As we stated in United States v. Chadwick, 433 U. S. 1, 9 (1977), “in this area we do not write on a clean slate.” In a long line of cases, this Court has stressed that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967) (footnotes omitted). This was not a principle freshly coined for the occasion in Katz, but rather represented this Court’s longstanding understanding of the relationship between the two Clauses of the Fourth Amendment. See Katz, supra, at 357, nn. 18 and 19. Since the time of Katz, this Court has recognized the existence of additional exceptions. See, e. g., Donovan v. Dewey, 452 U. S. 594 (1981); United States v. Martinez-Fuerte, 428 U. S. 543 (1976); South Dakota v. Opperman, 428 U. S. 364 (1976). However, we have consistently reaffirmed our understanding that in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the “persons, houses, papers, and effects” of citizens. See, e. g., Welsh v. Wisconsin, 466 U. S. 740, 748-750 (1984); United States v. Place, 462 U. S. 696, 701-702 (1983); United States v. Ross, 456 U. S. 798, 824-825 (1982); Steagald v. United States, 451 U. S. 204, 211-212 (1981); Mincey, supra, at 390; Coolidge v. New Hampshire, 403 U. S. 443, 474-475 (1971) (plurality opinion); Vale v. Louisiana, 399 U. S. 30, 34 (1970); Terry v. Ohio, 392 U. S. 1, 20 (1968).

A

Although the homicide investigators in this case may well have had probable cause to search the premises, it is undisputed that they did not obtain a warrant. Therefore, for the search to be valid, it must fall within one of the narrow and specifically delineated exceptions to the warrant requirement. In Mincey v. Arizona, 437 U. S. 385 (1978), we unanimously rejected the contention that one of the exceptions to the Warrant Clause is a “murder scene exception.” Although we noted that police may make warrantless entries on premises where “they reasonably believe that a person within is in need of immediate aid,” id., at 392, and that “they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises,” ibid., we held that “the ‘murder scene exception’... is inconsistent with the Fourth and Fourteenth Amendments — that the warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.” Id., at 395. Mincey is squarely on point in the instant case.

B

The Louisiana Supreme Court attempted to distinguish Mincey in several ways. The court noted that Mincey involved a 4-day search of the premises, while the search in this case took only two hours and was conducted on the same day as the murder. See 448 So. 2d, at 671. Although we agree that the scope of the intrusion was certainly greater in Mincey than here, nothing in Mincey turned on the length of time taken in the search or the date on which it was conducted. A 2-hour general search remains a significant intrusion on petitioner’s privacy and therefore may only be conducted subject to the constraints — including the warrant requirement — of the Fourth Amendment.

The Louisiana Supreme Court also believed that petitioner had a “diminished” expectation of privacy in her home, thus validating a search that otherwise would have been unconstitutional. 448 So. 2d, at 671. The court noted that petitioner telephoned her daughter to request assistance. The daughter then called the police and let them in the residence. These facts, according to the court, demonstrated a diminished expectation of privacy in petitioner’s dwelling and therefore legitimated the warrantless search.

Petitioner’s attempt to get medical assistance does not evidence a diminished expectation of privacy on her part. To be sure, this action would have justified the authorities in seizing evidence under the plain-view doctrine while they were in petitioner’s house to offer her assistance. In addition, the same doctrine may justify seizure of evidence obtained in the limited “victim-or-suspect” search discussed in Mincey. However, the evidence at issue here was not discovered in plain view while the police were assisting petitioner to the hospital, nor was it discovered during the “victim-or-suspect” search that had been completed by the time the homicide investigators arrived. Petitioner’s call for help can hardly be seen as an invitation to the general public that would have converted her home into the sort of public place for which no warrant to search would be necessary. Therefore, the Louisiana Supreme Court’s diminished-expectation-of-privacy argument fails to distinguish this case from Mincey,

The State contends that there was a sufficient element of consent in this case to distinguish it from the facts of Mincey. The Louisiana Supreme Court’s decision does not attempt to validate the search as consensual, although it attempts to support its diminished-expectation-of-privacy argument by reference to the daughter’s “apparent authority” over the premises when she originally permitted the police to enter. 448 So. 2d, at 671. Because the issue of consent is ordinarily a factual issue unsuitable for our consideration in the first instance, we express no opinion as to whether the search at issue here might be justified as consensual. However, we note that both homicide investigators explicitly testified that they had received no consent to search. Any claim of valid consent in this case would have to be measured against the standards of United States v. Matlock, 415 U. S. 164 (1974), and Schneckcloth v. Bustamonte, 412 U. S. 218 (1973).

Ill

For the reasons stated above, petitioner’s motion for leave to proceed informa pauperis is granted, the petition for writ of certiorari is granted, the judgment of the Louisiana Supreme Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.” U. S. Const., Amdt. 4.

       Indeed Chief Justice Dixon’s dissent in this case in the Louisiana Supreme Court reads in its entirety as follows: “I respectfully dissent. All it would take to make this search legal is a warrant.” 448 So. 2d 666, 673 (1984).

       The Louisiana Supreme Court seemed to believe that the fact that “both parties with authority over the premises [petitioner and her husband] were either dead or unconscious and in an apparently grave condition,” id., at 671, in some way diminished petitioner’s expectation of privacy in the premises. Yet neither petitioner’s unavailability nor the death of her husband have any bearing on petitioner’s continuing privacy interests.

       The Louisiana court’s argument in fact closely resembles an argument we rejected in Mincey. See 437 U. S., at 391-392.


author:
Justice Stevens
      Justice O’Connor,

text:
    UNITED STATES v. 50 ACRES OF LAND et al.
    No. 83-1170.
    Argued October 2, 1984
    Decided December 4, 1984

      Stevens, J., delivered the opinion for a unanimous Court. O’Connor, J., filed a concurring opinion, in which Powell, J., joined, post, p. 37.

      Joshua I. Schwartz argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Habicht, Deputy Solicitor General Claiborne, Deputy Assistant Attorney General Liotta, Raymond N. Zagone, Dirk D. Snel, and Thomas H. Pacheco.

      H. Louis Nichols argued the cause for respondents.

      Briefs of amici curiae urging affirmance were filed for the Council of State Governments et al. by Lawrence R. Velvet and Elaine Kaplan; and for Open Lands Project et al. by Young Kim, Ruth E. Van Demark, George W. Overton, T. S. L. Perlman, and Adam Yarmolinsky.

   Justice Stevens

delivered the opinion of the Court.

The Fifth Amendment requires that the United States pay “just compensation” — normally measured by fair market value — whenever it takes private property for public use. This case involves the condemnation of property owned by a municipality. The question is whether a public condemnee is entitled to compensation measured by the cost of acquiring a substitute facility if it has a duty to replace the condemned facility. We hold that this measure of compensation is not required when the market value of the condemned property is ascertainable.

I

In 1978, as part of a flood control project, the United States condemned approximately 50 acres of land owned by the city of Duncanville, Texas. The site had been used since 1969 as a sanitary landfill. In order to replace the condemned landfill, the city acquired a 113.7-acre site and developed it into a larger and better facility. In the condemnation proceedings, the city claimed that it was entitled to recover all of the costs incurred in acquiring the substitute site and developing it as a landfill, an amount in excess of $1,276,000. The United States, however, contended that just compensation should be determined by the fair market value of the condemned facility and deposited $199,950 in the registry of the court as its estimation of the amount due.

Before trial the Government filed a motion in limine to exclude any evidence of the cost of the substitute facility, arguing that it was not relevant to the calculation of fair market value. Record, Doc. No. 62. The District Court denied the motion, noting that this Court had left open the question of the proper measure of compensation for the condemnation of public property. See United States v. 564-54 Acres of Land, 441 U. S. 506, 509, n. 3 (1979) (Lutheran Synod). The court concluded that “a complete factual record should be developed from which an independent determination of the appropriate measure of compensation can be made.” Record, Doc. No. 111.

At trial, both parties submitted evidence on the fair market value of the condemned property and on the cost of the substitute landfill facility. Responding to special interrogatories, the jury found that the fair market value of the condemned property was $225,000, and that the reasonable cost of a substitute facility was $723,624.01. Record, Doc. Nos. 199, 200. The District Court entered judgment for the lower amount plus interest on the difference between that amount and the sum already paid. 529 F. Supp. 220 (ND Tex. 1981). The District Court explained that the city had not met its “burden of establishing what would be a reasonable cost of a substitute facility.” In addition, the court was of the view that “substitute facilities compensation should not be awarded in every case where a public condemnee can establish a duty to replace the condemned property, at least where a fair market value can be established.” Id., at 222. The court found no basis for departing from the market value standard in this case, and reasoned that the application of the substitute-facilities measure of compensation would necessarily provide the city with a “windfall.”

The Court of Appeals reversed and remanded for further proceedings. 706 F. 2d 1356 (CA5 1983). It reasoned that the city’s loss attributable to the condemnation was “the amount of money reasonably spent... to create a functionally equivalent facility.” Id., at 1360. If the city was required, either as a matter of law or as a matter of practical necessity, to replace the old landfill facility, the Court of Appeals believed that it would receive no windfall. The court, however, held that the amount of compensation should be adjusted to account for any qualitative differences in the substitute site. Finding that the trial judge’s instructions had not adequately informed the jury of its duty to discount the costs of the substitute facility in order to account for its increased capacity and superior quality, see n. 4, supra, the Court of Appeals remanded for a new trial. We granted the Government’s petition for certiorari, 465 U. S. 1098 (1984), and we now reverse with instructions to direct the District Court to enter judgment based on the jury’s finding of fair market value.

II

The Court has repeatedly held that just compensation normally is to be measured by “the market value of the property at the time of the taking contemporaneously paid in money.” Olson v. United States, 292 U. S. 246, 255 (1934). “Considerations that may not reasonably be held to affect market value are excluded.” Id., at 256. Deviation from this measure of just compensation has been required only “when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public.” United States v. Commodities Trading Corp., 339 U. S. 121, 123 (1950); Kirby Forest Industries, Inc. v. United States, 467 U. S. 1, 10, n. 14 (1984).

This case is not one in which an exception to the normal measure of just compensation is required because fair market value is not ascertainable. Such cases, for the most part, involve properties that are seldom, if ever, sold in the open market. Under those circumstances, “we cannot predict whether the prices previously paid, assuming there have been prior sales, would be repeated in a sale of the condemned property.” Lutheran Synod, 441 U. S., at 513. In this case, however, the testimony at trial established a fairly robust market for sanitary landfill properties, see n. 5, supra, and the jury’s determination of the fair market value of the condemned landfill facility is adequately supported by expert testimony concerning the sale prices of comparable property. Cf. 441 U. S., at 513-514.

The city contends that in this case an award of compensation measured by market value is fundamentally inconsistent with the basic principles of indemnity embodied in the Just Compensation Clause. If the city were a private party rather than a public entity, however, the possibility that the cost of a substitute facility exceeds the market value of the condemned parcel would not justify a departure from the market value measure. Lutheran Synod, 441 U. S., at 514-517. The question — which we expressly reserved in the Lutheran Synod case — is whether a substitute-facilities measure of compensation is mandated by the Constitution when the condemnee is a local governmental entity that has a duty to replace the condemned facility.

III

The text of the Fifth Amendment certainly does not mandate a more favorable rule of compensation for public condemnees than for private parties. To the contrary, the language of the Amendment only refers to compensation for “private property,” and one might argue that the Framers intended to provide greater protection for the interests of private parties than for public condemnees. That argument would be supported by the observation that many public condemnees have the power of eminent domain, and thus, unlike private parties, need not rely on the availability of property on the market in acquiring substitute facilities.

When the United States condemns a local public facility, the loss to the public entity, to the persons served by it, and to the local taxpayers may be no less acute than the loss in a taking of private property. Therefore, it is most reasonable to construe the reference to “private property” in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when it is condemned by the United States. Under this construction, the same principles of just compensation presumptively apply to both private and public condemnees.

IV

The Court of Appeals correctly identified a dictum in Brown v. United States, 263 U. S. 78 (1923), as the source of what has become known as the “substitute-facilities doctrine.” When that passage is read in the context of the Court’s decision in that case, it lends no support to the suggestion that a distinction should be drawn between public and private condemnees. Nor does it shed any light on the proper measure of compensation in this case.

The facts of the Brown case were, in the Court’s word, “peculiar.” The construction of a reservoir on the Snake River flooded approximately three-quarters of the town of American Falls, Idaho, an area of some 640 acres. To compensate both the public and private owners of the flooded acreage, the Government undertook to relocate most of the town to the other side of the river. The owners of a large tract to be included within the limits of the reconstructed town challenged the Government’s power to condemn their property, contending that the transfer of their property to other private persons was not a “public use” as required by the Fifth Amendment. Cf. Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 239-244 (1984).

In rejecting that contention, the Court held that the Government’s method of compensating the owners of the flooded property was legitimate. Writing for the Court, Chief Justice Taft observed:

“The usual and ordinary method of condemnation of the lots in the old town, and of the streets and alleys as town property, would be ill adapted to the exigency. . . . A town is a business center. It is a unit. If three-quarters of it is to be destroyed by appropriating it to an exclusive use like a reservoir, all property owners, both those ousted and those in the remaining quarter, as well as the State, whose subordinate agency of government is the municipality, are injured. A method of compensation by substitution would seem to be the best means of making the parties whole. The power of condemnation is necessary to such a substitution.” 263 U. S., at 82-83 (emphasis added).

Taken in context, the apparent endorsement of compensation by substitution is made in support of the Government’s power to condemn the property in Brown and does not state the proper measure of compensation in another case. Lutheran Synod, 441 U. S., at 509, n. 3.

Brown merely indicates that it would have been constitutionally permissible for the Federal Government to provide the city with a substitute landfill site instead of compensating it in cash. Nothing in Brown implies that the Federal Government has a duty to provide the city with anything more than the fair market value of the condemned property.

V

In this case, as in most, the market measure of compensation achieves a fair “balance between the public’s need and the claimant’s loss.” United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U. S. 396, 402 (1949). This view is consistent with our holding in Lutheran Synod that fair market value constitutes “just compensation” for those private citizens who must replace their condemned property with more expensive substitutes and with our prior holdings that the Fifth Amendment does not require any award for consequential damages arising from a condemnation.

The city argues that its responsibility for municipal garbage disposal justifies a departure from the market value measure in this case. This responsibility compelled the city to arrange for a suitable replacement facility or substitute garbage disposal services. This obligation to replace a condemned facility, however, is no more compelling than the obligations assumed by private citizens. Even though most private condemnees are not legally obligated to replace property taken by the Government, economic circumstances often force them to do so. When a home is condemned, for example, its owner must find another place to live. The city’s legal obligation to maintain public services that are interrupted by a federal condemnation does not justify a distinction between public and private condemnees for the purpose of measuring “just compensation.”

Of course, the decision in Lutheran Synod was based, in part, on a fear that a private condemnee might receive a “windfall” if its compensation were measured by the cost of a substitute facility and “substitute facilities were never acquired, or if acquired, were later sold or converted to another use.” 441 U. S., at 516. The Court of Appeals suggested that the city’s obligation to replace the facility avoids this risk, 706 F. 2d, at 1360, but we do not agree. If the replacement facility is more costly than the condemned facility, it presumably is more valuable, and any increase in the quality of the facility may be as readily characterized as a “windfall” as the award of cash proceeds for a substitute facility that is never built.

The Court of Appeals, however, believed that the risk of any windfall could be reduced by discounting the cost of the substitute facility to account for its superior quality. Id., at 1362-1363. This approach would add uncertainty and complexity to the valuation proceeding without any necessary improvement in the process. In order to implement the Court of Appeals’ approach, the factfinder would have to make at least two determinations: (i) the reasonable (rather than the actual) replacement cost, which would require an inquiry into the fair market value of the second facility; and (ii) the extent to which the new facility is superior to the old, which would require an analysis of the qualitative differences between the new and the old. It would also be necessary to determine the fair market value of the old property in order to provide a basis for comparison. There is a practical risk that the entire added value will not be calculated correctly; moreover, if it is correctly estimated, the entire process may amount to nothing more than a roundabout method of arriving at the market value of the condemned facility.

Finally, the substitute-facilities doctrine, as applied in this case, diverges from the principle that just compensation must be measured by an objective standard that disregards subjective values which are only of significance to an individual owner. As the Court wrote in Kimball Laundry Co. v. United States, 338 U. S. 1, 5 (1949):

“The value of property springs from subjective needs and attitudes; its value to the owner may therefore differ widely from its value to the taker. Most things, however, have a general demand which gives them a value transferable from one owner to another. As opposed to such personal and variant standards as value to the particular owner whose property has been taken, this transferable value has an external validity which makes it a fair measure of public obligation to compensate the loss incurred by an owner as a result of the taking of his property for public use. In view, however, of the liability of all property to condemnation for the common good, loss to the owner of nontransferable values deriving from his unique need for property or idiosyncratic attachment to it, like loss due to an exercise of the police power, is properly treated as part of the burden of common citizenship.”

The subjective elements in the formula for determining the cost of reasonable substitute facilities would enhance the risk of error and prejudice. Since the condemnation contest is between the local community and a National Government that may be thought to have unlimited resources, the open-ended character of the substitute-facilities standard increases the likelihood that the city would actually derive the windfall that concerned both the District Court and the Court of Appeals. “Particularly is this true where these issues are to be left for jury determination, for juries should not be given sophistical and abstruse formulas as the basis for their findings nor be left to apply even sensible formulas to factors that are too elusive.” Id., at 20.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice O’Connor,

with whom Justice Powell joins,

concurring.

I concur in the Court’s opinion and judgment that, on the facts of this case, the city of Duncanville is justly compensated by the payment of the market value for the sanitary landfill that was condemned by the Government. I write separately to note that I do not read the Court’s opinion to preclude a municipality or other local governmental entity from establishing that payment of market value in a particular case is manifestly unjust and therefore inconsistent with the Just Compensation Clause. See ante, at 29. When a local governmental entity can prove that the market value of its property deviates significantly from the make-whole remedy intended by the Just Compensation Clause and that a substitute facility must be acquired to continue to provide an essential service, limiting compensation to the fair market value in my view would be manifestly unjust. Because the city of Duncanville did not establish that the market value in this case deviated significantly from the indemnity principle, I agree that the decision of the Court of Appeals should be reversed.

        United States v. Miller, 317 U. S. 369, 374 (1943) (“what a willing buyer would pay in cash to a willing seller”).

      “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5.

       The United States initiated the condemnation proceedings by filing a declaration of taking under 40 U. S. C. § 258a. Under that procedure the Government deposits the estimated value of the land in the registry of the court. “Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference.” Kirby Forest Industries, Inc. v. United States, 467 U. S. 1, 5 (1984).

       The new landfill site is larger in acreage than the old facility and because of superior soil and water table conditions it can be excavated to a greatpf’ depth. As a result, the capacity of the new facility is 2,100,000 cubic yards while the remaining capacity of the old facility was 650,000 cubic yards. The new facility is expected to remain in service for 41.6 years, or 28.8 years longer than the condemned facility would have remained in service. Tr. 395-397, 399, 402.

       Experts for both the United States and the city agreed that a market for landfill properties existed in the area. A Government witness, for example, testified that there are “private owners of solid waste companies in the market for land for their own solid waste disposal sites. You’ve got the major corporations in the marketplace securing sites for landfill operations and then you’ve got all of your City Governments, they’re seeking locations to deposit solid waste. And all of these people at one time or another are in the marketplace looking for a site for solid waste disposal.” Id., at 297.
      Based on their evaluation of the recent sale prices of comparable parcels, the experts for the city estimated the value of the condemned facility as between $367,500 and $370,000; experts for the United States estimated its value as between $160,410 and $190,000. Id., at 173, 182, 276, 353.

       The city’s Director of Public Works admitted on cross-examination that the city had condemnation powers, but did not use them in acquiring the land for the new facility. Nor did the city bargain over the seller’s asking price or have the land appraised prior to the acquisition: “This was the price that he had asked for, what we ended up paying for it.” Id., at 93-94. The Government’s expert witnesses testified that the city paid considerably more than fair market value for the new land. Id., at 282, 321. 357.

       The District Court awarded interest at the statutory rate of six percent, 40 U. S. C. § 258a, because the city had not offered any evidence indicating that a higher rate of interest prevailed. 529 F. Supp. 220, 223-224 (ND Tex. 1981).

         Id., at 221.

       Relying on Justice White’s concurring opinion in United States v. 564.54 Acres of Land, 441 U. S. 506, 518 (1979) (Lutheran Synod), the District Court wrote:
      “When the doctrine of cost of substitute facilities is applied, a windfall necessarily accrues to the condemnee who is awarded an amount sufficient to replace ancient or depleted facilities with brand new facilities. [441 U. S., at 517] (Justice White concurring). See also [United States v.] 564.54 Acres, 576 F. 2d 983, 996-1000 (3d Cir. 1978) (Judge Stern concurring). By definition, a market value represents approximately what it would cost to purchase the same or similar property in the marketplace.” 529 F. Supp., at 222 (emphasis in original).

       “In light of [the remand for a new trial],” the Court of Appeals instructed the District Court to allow the city a second opportunity to present evidence on whether the rate of interest on the condemnation award should exceed the statutory rate of six percent. 706 F. 2d, at 1364. In view of our disposition of the case, the Court of Appeals’ rationale for a new hearing on that issue is no longer valid.

       We denied the petition for certiorari filed by the city challenging the order of a new trial and seeking the entry of judgment on the jury’s finding of the cost of the substitute facility. City of Duncanville v. United States, 465 U. S. 1022 (1984).

       “This might be the case, for example, with respect to public facilities such as roads or sewers.” Lutheran Synod, 441 U. S., at 513.

       “This Court has not passed on the propriety of substitute-facilities compensation for public condemnees. ... In light of our disposition of this case, we express no opinion on the appropriate measure of compensation for publicly owned property.” Id., at 509, n. 3.

       Congress, of course, has the power to authorize compensation greater than the constitutional minimum. See United States v. General Motors Corp., 323 U. S. 373, 382 (1945); see, e. g., Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894, 42 U. S. C. §4601 et seq. (requiring the payment of relocation assistance to specified persons and businesses displaced as a result of federal and federally assisted programs).

       See United States v. Carmack, 329 U. S. 230, 242 (1946):
      “[WJhen the Federal Government. . . takes for a federal public use the independently held and controlled property of a state or of a local subdivision, the Federal Government recognizes its obligation to pay just compensation for it and it is conceded in this case that the Federal Government must pay just compensation for the land condemned.”
      See also Block v. North Dakota ex rel. Board of University and School Lands, 461 U. S. 273, 291 (1983).

       See, e. g., United States v. Certain Property in Borough of Manhattan, 403 F. 2d 800, 803 (CA2 1968); United States v. Board of Education of Mineral County, 253 F. 2d 760, 763 (CA4 1958).

       “An important town stood in the way of a necessary improvement by the United States. Three-quarters of its streets, alleys and parks and of its buildings, public and private, would have to be abandoned. . . . American Falls is a large settlement for that sparsely settled country and it was many miles from a town of any size in any direction. It was a natural and proper part of the construction of the dam and reservoir to make provision for a substitute town as near as possible to the old one.” 263 U. S., at 81.

       See United States v. General Motors Corp., 323 U. S., at 382; see generally J. Gelin & D. Miller, Federal Law of Eminent Domain § 2.4(B) (1982).

       The Court of Appeals left open the question whether the city was, in fact, under an obligation to replace its landfill facility, 706 F. 2d, at 1360, n. 6, but for purposes of our decision we assume that it was obligated to do so.

       In holding that the substitute-facilities measure of compensation was appropriate in this case, the Court of Appeals did not rely solely on the city’s legal obligations to arrange for garbage disposal within the municipality, but also on “any practical, economic or logistical advantages of the city’s operation and control of its own sanitary landfill.” Ibid.

       “Obviously, replacing the old with a new facility will cost more than the value of the old, but the new facility itself will be more valuable and last longer.” Lutheran Synod, 441 U. S., at 518 (White, J., concurring).

       Indeed, one might infer from the record that this would be the result here. See nn. 4 and 6, supra. The District Court, in fact, found that an award of fair market value would place the city “in as good a position pecuniarily as if its property had not been taken.” 529 F. Supp., at 223.

       Cf. R. Posner, Economic Analysis of Law 402 (2d ed. 1977) (“The vogue of cost-benefit analysis has created inflated notions of the effectiveness of analytical techniques in resolving questions of cost and demand”).

       Of course, we express no view on the admissibility of testimony on reproduction cost when it is offered on the issue of fair market value. Cf. United States v. Commodities Trading Corp., 339 U. S. 121, 126 (1950). The admissibility of such evidence must be evaluated under the generally applicable rules of evidence. E. g., Fed. Rules Evid. 401-403, 701-705.


author: Chief Justice Burger Justice Brennan,

text:
    LUCE v. UNITED STATES
    No. 83-912.
    Argued October 3, 1984
    Decided December 10, 1984

      Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Stevens, J., who took no part in the consideration or decision of the case. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 43.

      James I. Marcus argued the cause and filed a brief for petitioner.

      Bruce N. Kuhlik argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Sara Criscitelli.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve a conflict among the Circuits as to whether the defendant, who did not testify at trial, is entitled to review of the District Court’s ruling denying his motion to forbid the use of a prior conviction to impeach his credibility.

I

Petitioner was indicted on charges of conspiracy, and possession of cocaine with intent to distribute, in violation of 21 U. S. C. §§ 846 and 841(a)(1). During his trial in the United States District Court for the Western District of Tennessee, petitioner moved for a ruling to preclude the Government from using a 1974 state conviction to impeach him if he testified. There was no commitment by petitioner that he would testify if the motion were granted, nor did he make a proffer to the court as to what his testimony would be. In opposing the motion, the Government represented that the conviction was for a serious crime — possession of a controlled substance.

The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a). The District Court noted, however, that the nature and scope of petitioner’s trial testimony could affect the court’s specific evidentiary rulings; for example, the court was prepared to hold that the prior conviction would be excluded if petitioner limited his testimony to explaining his attempt to flee from the arresting officers. However, if petitioner took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Petitioner did not testify, and the jury returned guilty verdicts.

II

The United States Court of Appeals for the Sixth Circuit affirmed. 713 F. 2d 1236 (1983). The Court of Appeals refused to consider petitioner’s contention that the District Court abused its discretion in denying the motion in limine without making an explicit finding that the probative value of the prior conviction outweighed its prejudicial effect. The Court of Appeals held that when the defendant does not testify, the court will not review the District Court’s in limine ruling.

Some other Circuits have permitted review in similar situations; we granted certiorari to resolve the conflict. 466 U. S. 903 (1984). We affirm.

III

It is clear, of course, that had petitioner testified and been impeached by evidence of a prior conviction, the District Court’s decision to admit the impeachment evidence would have been reviewable on appeal along with any other claims of error. The Court of Appeals would then have had a complete record detailing the nature of petitioner’s testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury’s verdict.

A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.

Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction.

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

Because an accused’s decision whether to testify “seldom turns on the resolution of one factor,” New Jersey v. Portash, 440 U. S. 450, 467 (1979) (Blackmun, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it.

Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v. Hasting, 461 U. S. 499 (1983). Were in limine rulings under Rule 609(a) re viewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to “plant” reversible error in the event of conviction.

Petitioner’s reliance on Brooks v. Tennessee, 406 U. S. 605 (1972), and New Jersey v. Portash, supra, is misplaced. In those cases we reviewed Fifth Amendment challenges to state-court rulings that operated to dissuade defendants from testifying. We did not hold that a federal court’s preliminary ruling on a question not reaching constitutional dimensions — such as a decision under Rule 609(a) — is reviewable on appeal.

However, Justice Powell, in his concurring opinion in Portash, stated essentially the rule we adopt today:

“The preferred method for raising claims such as [petitioner’s] would be for the defendant to take the stand and appeal a subsequent conviction .... Only in this way may the claim be presented to a reviewing court in a concrete factual context.” 440 U. S., at 462.

We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. Accordingly, the judgment of the Court of Appeals is

Affirmed.

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

Justice Brennan,

with whom Justice Marshall joins,

concurring.

I join the opinion of the Court because I understand it to hold only that a defendant who does not testify at trial may not challenge on appeal an in limine ruling respecting admission of a prior conviction for purposes of impeachment under Rule 609(a) of the Federal Rules of Evidence. The Court correctly identifies two reasons for precluding appellate review unless the defendant testifies at trial. The careful weighing of probative value and prejudicial effect that Rule 609(a) requires of a district court can only be evaluated adequately on appeal in the specific factual context of a trial as it has unfolded. And if the defendant declines to testify, the reviewing court is handicapped in making the required harmless-error determination should the district court’s in limine ruling prove to have been incorrect.

I do not understand the Court to be deciding broader questions of appealability vel non of in limine rulings that do not involve Rule 609(a). In particular, I do not read the Court’s quotation of Justice Powell’s concurring opinion in New Jersey v. Portash, 440 U. S. 450, 462 (1979), see ante, at 48, as intimating a determination with respect to a federal court’s in limine ruling concerning the constitutionality of admitting immunized testimony for impeachment purposes. In that case, and others in which the determinative question turns on legal and not factual considerations, a requirement that the defendant actually testify at trial to preserve the admissibility issue for appeal might not necessarily be appropriate. The appellate court’s need to frame the question in a concrete factual context would be less acute, and the calculus of interests correspondingly different, than in the Rule 609(a) case the Court decides today.

       Rule 609(a) provides:
      “General Rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.”

        “In limine” has been defined as “[o]n or at the threshold; at the very beginning; preliminarily.” Black’s Law Dictionary 708 (5th ed. 1979). We use the term in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.

       See, e. g., United States v. Lipscomb, 226 U. S. App. D. C. 312, 332, 702 F. 2d 1049, 1069 (1983) (en banc); United States v. Kiendra, 663 F. 2d 349, 352 (CA1 1981); United States v. Fountain, 642 F. 2d 1083, 1088 (CA7), cert. denied, 451 U. S. 993 (1981); United States v. Toney, 615 F. 2d 277, 279 (CA5), cert. denied, 449 U. S. 985 (1980). The Ninth Circuit allows review if the defendant makes a record unequivocally announcing his intention to testify if his motion to exclude prior convictions is granted, and if he proffers the substance of his contemplated testimony. See United States v. Cook, 608 F. 2d 1175, 1186 (1979) (en banc), cert. denied, 444 U. S. 1034 (1980).

       Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials. See generally Fed. Rule Evid. 103(e); cf. Fed. Rule Crim. Proc. 12(e).

       Requiring a defendant to make a proffer of testimony is no answer; his trial testimony could, for any number of reasons, differ from the proffer.