source: Caselaw Access Project

author: Justice Blackmun Justice Brennan,

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text:
    FIRST NATIONAL MAINTENANCE CORP. v. NATIONAL LABOR RELATIONS BOARD
    No. 80-544.
    Argued April 21, 1981
    Decided June 22, 1981

      Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 688.

      Sanford E. Pollack argued the cause for petitioner. With him on the briefs was Perry S. Heidecker.

      Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General McCree, Elinor Had-ley Stillman, and Linda Sher.

      Briefs of amici curiae urging reversal were filed by Robert J. Fenlon for the American Society for Personnel Administration; by Marvin E. Frankel, Saul G. Kramer, and Stephen A. Bokat for the Chamber of Commerce of the United States; and by Daniel Popeo and Paul D. Kamenar for the Washington Legal Foundation.

        J. Albert Woll, Laurence Gold, George Kaufmann, and John A. Fillion filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court.

Must an employer, under its duty to bargain in good faith “with respect to wages, hours, and other terms and conditions of employment,” §§ 8 (d) and 8 (a)(5) of the National Labor Relations Act (Act), as amended, 49 Stat. 452, 29 U. S. C. §§ 158 (d) and 158 (a)(5), negotiate with the certified representative of its employees over its decision to close a part of its business? In this case, the National Labor Relations Board (Board) imposed such a duty on petitioner with respect to its decision to terminate a contract with a customer, and the United States Court of Appeals, although differing over the appropriate rationale, enforced its order.

I

Petitioner, First National Maintenance Corporation (FNM), is a New York corporation éngaged in the business of providing housekeeping, cleaning, maintenance, and related services for commercial customers in the New York City area. It supplies each of its customers, at the customer’s premises, contracted-for labor force and supervision in return for reimbursement of its labor costs (gross salaries, FICA and FUTA taxes, and insurance) and payment of a set fee. It contracts for and hires personnel separately for each customer, and it does not transfer employees between locations.

During the spring of 1977, petitioner was performing maintenance work for the Greenpark Care Center, a nursing home in Brooklyn. Its written agreement dated April 28, 1976, with Greenpark specified that Greenpark “shall furnish all tools, equiptment [sic], materials, and supplies,” and would pay petitioner weekly “the sum of five hundred dollars plus the gross weekly payroll and fringe benefits.” App. in No. 79-4167 (CA2), pp. 43, 44. Its weekly fee, however, had been reduced to $250 effective November 1, 1976. Id., at 46. The contract prohibited Greenpark from hiring any of petitioner’s employees during the term of the contract and for 90 days thereafter. Id., at 44. Petitioner employed approximately 35 workers in its Greenpark operation.

Petitioner’s business relationship with Greenpark, seemingly, was not very remunerative or smooth. In March 1977, Greenpark gave petitioner the 30 days’ written notice of cancellation specified by the contract, because of “lack of efficiency.” Id., at 52. This cancellation did not become effective, for FNM’s work continued after the expiration of that 30-day period. Petitioner, however, became aware that it was losing money at Greenpark. On June 30, by telephone, it asked that its weekly fee be restored at the $500 figure and, on July 6, it informed Greenpark in writing that it would discontinue its operations there on August 1 unless the increase were granted. Id., at 47. By telegram on July 25, petitioner gave final notice of termination. Id., at 48.

While FNM was experiencing these difficulties, District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO (union), was conducting an organization campaign among petitioner’s Greenpark employees. On March 31, 1977, at a Board-conducted election, a majority of the employees selected the union as their bargaining agent. On July 12, the union’s vice president, Edward Wecker, wrote petitioner, notifying it of the certification and of the union’s right to bargain, and stating: “We look forward to meeting with you or your representative for that purpose. Please advise when it will be convenient.” Id., at 49. Petitioner neither responded nor sought to consult with the union.

On July 28, petitioner notified its Greenpark employees that they would be discharged three days later. Wecker immediately telephoned petitioner’s secretary-treasurer, Leonard Marsh, to request a delay for the purpose of bargaining. Marsh refused the offer to bargain and told Wecker that the termination of the Greenpark operation was purely a matter of money, and final, and that the 30 days’ notice provision of the Greenpark contract made staying on beyond August 1 prohibitively expensive. Id., at 79-81, 83, 85-86, 94. Wecker discussed the matter with Greenpark’s management that same day, but was unable to obtain a waiver of the notice provision. Id., at 91-93, 98-99. Greenpark also was unwilling itself to hire the FNM employees because of the contract’s 90-day limitation on hiring. Id., at 100-101, 106-107. With nothing but perfunctory further discussion, petitioner on July 31 discontinued its Greenpark operation and discharged the employees. Id., at 110-116.

The union filed an unfair labor practice charge against petitioner, alleging violations of the Act’s §§8 (a)(1) and (5). After a hearing held upon the Regional Director’s complaint, the Administrative Law Judge made findings in the union’s favor. Relying on Ozark Trailers, Inc., 161 N. L. R. B. 561 (1966), he ruled that petitioner had failed to satisfy its duty to bargain concerning both the decision to terminate the Greenpark contract and the effect of that change upon the unit employees. The judge reasoned:

“That the discharge of a man is a change in his conditions of employment hardly needs comment. In these obvious facts, the law is clear. When an employer’s work complement is represented by a union and he wishes to alter the hiring arrangements, be his reason lack of money or a mere desire to become richer, the law is no less clear that he must first talk to the union about it. .. . If Wecker had been given an opportunity to talk, something might have been worked out to transfer these people to other parts of [petitioner’s] business. . . . Entirely apart from whether open discussion between the parties — with the Union speaking on behalf of the employees as was its right — might have persuaded [petitioner] to find a way of continuing this part of its operations, there was always the possibility that Marsh might have persuaded Greenpark to use these same employees to continue doing its maintenance work, either as direct employees or as later hires by a replacement contractor.” 242 N. L. R. B. 462, 465 (1979).

The Administrative Law Judge recommended an order requiring petitioner to bargain in good faith with the union about its decision to terminate its Greenpark service operation and its consequent discharge of the employees, as well as the effects of the termination. He recommended, also, that petitioner be ordered to pay the discharged employees backpay from the date of discharge until the parties bargained to agreement, or the bargaining reached an impasse, or the union failed timely to request bargaining, or the union failed to bargain in good faith.

The National Labor Relations Board adopted the Administrative Law Judge’s findings without further analysis, and additionally required petitioner, if it agreed to resume its Greenpark operations, to offer the terminated employees reinstatement to their former jobs or substantial equivalents; conversely, if agreement was not reached, petitioner was ordered to offer the employees equivalent positions, to be made available by discharge of subsequently hired employees, if necessary, at its other operations. Id., at 463.

The United States Court of Appeals for the Second Circuit, with one judge dissenting in part, enforced the Board’s order, although it adopted an analysis different from that espoused by the Board. 627 F. 2d 596 (1980). The Court of Appeals reasoned that no per se rule could be formulated to govern an employer’s decision to close part of its business. Rather, the court said, § 8 (d) creates a presumption in favor of mandatory bargaining over such a decision, a presumption that is re-buttable “by showing that the purposes of the statute would not be furthered by imposition of a duty to bargain,” for example, by demonstrating that “bargaining over the decision would be futile,” or that the decision was due to “emergency financial circumstances,” or that the “custom of the industry, shown by the absence of such an obligation from typical collective bargaining agreements, is not to bargain over such decisions.” Id., at.601-602.

The Court of Appeals’ decision in this case appears to be at odds with decisions of other Courts of Appeals, some of which decline to require bargaining over any management decision involving “a major commitment of capital investment” or a “basic operational change” in the scope or direction of an enterprise, and some of which indicate that bargaining is not mandated unless a violation of § 8 (a) (3) (a partial closing motivated by antiunion animus) is involved. The Court of Appeals for the Fifth Circuit has imposed a duty to bargain over partial closing decisions. See NLRB v. Winn-Dixie Stores, Inc., 361 F. 2d 512, cert. denied, 385 U. S. 935 (1966). The Board itself has not been fully consistent in its rulings applicable to this type of management decision.

Because of the importance of the issue and the continuing disagreement between and among the Board and the Courts of Appeals, we granted certiorari.- 449 U. S. 1076 (1981).

II

A fundamental aim of the National Labor Relations Act is the establishment and maintenance of industrial peace to preserve the flow of interstate commerce. NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937). Central to achievement of this purpose is the promotion of collective bargaining as a method of defusing and channeling conflict between labor and management. § 1 of the Act, as amended, 29 U. S. C. §151. Congress ensured that collective bargaining would go forward by creating the Board and giving it the power to condemn as unfair labor practices certain conduct by unions and employers that it deemed deleterious to the process, including the refusal “to bargain collectively.” §§ 3 and 8, 29 U. S. C. §§ 153 and 158.

Although parties are free to bargain about any legal subject, Congress has limited the mandate or duty to bargain to matters of “wages, hours, and other terms and conditions of employment.” A unilateral change as to a subject within this category violates the statutory duty to bargain and is subject to the Board’s remedial order. NLRB v. Katz, 369 U. S. 736 (1962). Conversely, both employer and union may bargain to impasse over these matters and use the economic weapons at their disposal to attempt to secure their respective aims. NLRB v. American National Ins. Co., 343 U. S. 395 (1952). Congress deliberately left the words “wages, hours, and other terms and conditions of employment” without further definition, for it did not intend to deprive the Board of the power further to define those terms in light of specific industrial practices.

Nonetheless, in establishing what issues must be submitted to the process of bargaining, Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise in which the union’s members are employed. Despite the deliberate open-endedness of the statutory language, there is an undeniable limit to the subjects about which bargaining must take place:

“Section 8 (a) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining. . . . But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the employer and the employees.” Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 178 (1971).

See also Ford Motor Co. v. NLRB, 441 U. S. 488 (1979); Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203 (1964); Teamsters v. Oliver, 358 U. S. 283 (1959).

Some management decisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the employment relationship. See Fibreboard, 379 U. S., at 223 (Stewart, J., concurring). Other management decisions, such as the order of succession of layoffs and recalls, production quotas, and work rules, are almost exclusively “an aspect of the relationship” between employer and employee. Chemical Workers, 404 U. S., at 178. The present case concerns a third type of management decision, one that had a direct impact on employment, since jobs were inexorably eliminated by the termination, but had as its focus only the economic profitability of the contract with Greenpark, a concern under these facts wholly apart from the employment relationship. This decision, involving a change in the scope and direction of the enterprise, is akin to the decision whether to be in business at all, “not in [itself] primarily about conditions of employment, though the effect of the decision may be necessarily to terminate employment.” Fibreboard, 379 U. S., at 223 (Stewart, J., concurring). Cf. Textile Workers v. Darlington Co., 380 U. S. 263, 268 (1965) (“an employer has the absolute right to terminate his entire business for any reason he pleases”). At the same time, this decision touches on a matter of central and pressing concern to the union and its member employees: the possibility of continued employment and the retention of the employees’ very jobs. See Brockway Motor Trucks v. NLRB, 582 F. 2d 720, 735-736 (CA3 1978); Ozark Trailers, Inc., 161 N. L. R. B. 561, 566-568 (1966).

Petitioner contends it had no duty to bargain about its decision to terminate its operations at Greenpark. This contention requires that we determine whether the decision itself should be considered part of petitioner’s retained freedom to manage its affairs unrelated to employment. The aim of labeling a matter a mandatory subject of bargaining, rather than simply permitting, but not requiring, bargaining, is to “promote the fundamental purpose of the Act by bringing a problem of vital concern to labor and management within the framework established by Congress as most conducive to industrial peace,” Fibreboard, 379 U. S., at 211. The concept of mandatory bargaining is premised on the belief that collective discussions backed by the parties’ economic weapons will result in decisions that are better for both management and labor and for society as a whole. Ford Motor Co., 441 U. S., at 500-501; Borg-Warner, 356 U. S., at 350 (condemning employer’s proposal of “ballot” clause as weakening the collective-bargaining process). This will be true, however, only if the subject proposed for discussion is amenable to resolution through the bargaining process. Management must be free from the constraints of the bargaining process to the extent essential for the running of a profitable business. It also must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice. Congress did not explicitly state what issues of mutual concern to union and management it intended to exclude from mandatory bargaining. Nonetheless, in view of an employer’s need for unencumbered decisionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.

The Court in Fibreboard implicitly engaged in this analysis with regard to a decision to subcontract for maintenance work previously done by unit employees. Holding the employer’s decision a subject of mandatory bargaining, the Court relied not only on the “literal meaning” of the statutory words, but also reasoned:

“The Company’s decision to contract out the maintenance work did not alter the Company’s basic operation. The maintenance work still had to be performed in the plant. No capital investment was contemplated; the Company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment. Therefore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business.” 379 U. S., at 213.

The Court also emphasized that a desire to reduce labor costs, which it considered a matter “peculiarly suitable for resolution within the collective bargaining framework,” id., at 214, was at the base of the employer’s decision to subcontract:

“It was induced to contract out the work by assurances from independent contractors that economies could be derived by reducing the work force, decreasing fringe benefits, and eliminating overtime payments. These have long been regarded as matters peculiarly suitable for resolution within the collective bargaining framework, and industrial experience demonstrates that collective negotiation has been highly successful in achieving peaceful accommodation of the conflicting interests.” Id., at 213-214.

The prevalence of bargaining over “contracting out” as a matter of industrial practice generally was taken as further proof of the “amenability of such subjects to the collective bargaining process.” Id., at 211.

With this approach in mind, we turn to the specific issue at hand: an economically motivated decision to shut down part of a business.

Ill

A

Both union and management regard control of the decision to shut down an operation with the utmost seriousness. As has been noted, however, the Act is not intended to serve either party’s individual interest, but to foster in a nedtral manner a system in which the conflict between these interests may be resolved. It seems particularly important, therefore, to consider whether requiring bargaining over this sort of decision will advance the neutral purposes of the Act.

A union’s interest in participating in the decision to close a particular facility or part of an employer’s operations springs from its legitimate concern over job security. The Court has observed: “The words of [§ 8 (d)] . . . plainly cover termination of employment which . . . necessarily results” from closing an operation. Fibreboard, 379 U. S., at 210. The union’s practical purpose in participating, however, will be largely uniform: it will seek to delay or halt the closing. No doubt it will be impelled, in seeking these ends, to offer concessions, information, and alternatives that might be helpful to management or forestall or prevent the termination of jobs. It is unlikely, however, that requiring bargaining over the decision itself, as well as its effects, will augment this flow of information and suggestions. There is no dispute that the union must be given a significant opportunity to bargain about these matters of job security as part of the “effects” bargaining mandated by §8 (a)(5). See, e. g., NLRB v. Royal Plating & Polishing Co., 350 F. 2d 191, 196 (CA3 1965); NLRB v. Adams Dairy, Inc., 350 F. 2d 108 (CA8 1965), cert. denied, 382 U. S. 1011 (1966). And, under §8 (a)(5), bargaining over the effects of a decision must be conducted in a meaningful manner and at a meaningful time, and the Board may impose sanctions to insure its adequacy. A union, by pursuing such bargaining rights, may achieve valuable concessions from an employer engaged in a partial closing. It also may secure in contract negotiations provisions implementing rights to notice, information, and fair bargaining. See BNA, Basic Patterns in Union Contracts 62-64 (9th ed., 1979).

Moreover, the union’s legitimate interest in fair dealing is protected by §8 (a) (3), which prohibits partial closings motivated by antiunion animus, when done to gain an unfair advantage. Textile Workers v. Darlington Co., 380 U. S. 263 (1965). Under §8 (a) (3) the Board may inquire into the motivations behind a partial closing. An employer may not simply shut down part of its business and mask its desire to weaken and circumvent the union by labeling its decision “purely economic.”

Thus, although the union has a natural concern that a partial closing decision not be hastily or unnecessarily entered into, it has some control over the effects of the decision and indirectly'may ensure that the decision itself is deliberately considered. It also has direct protection against a partial closing decision that is motivated by an intent to harm a union.

Management’s interest in whether it should discuss a decision of this kind is much more complex and varies with the particular circumstances. If labor costs are an important factor in a failing operation and the decision to close, management will have an incentive to confer voluntarily with the union to seek concessions that may make continuing the business profitable. Cf. U. S. News & World Report, Feb. 9, 1981, p. 74; BNA, Labor Relations Yearbook-1979, p. 5 (UAW agreement with Chrysler Corp. to make concessions on wages and fringe benefits). At other times, management may have great need for speed, flexibility, and secrecy in meeting business opportunities and exigencies. It may face significant tax or securities consequences that hinge on confidentiality, the timing of a plant closing, or a reorganization of the corporate structure. The publicity incident to the normal process of bargaining may injure the possibility of a successful transition or increase the economic damage to the business. The employer also may have no feasible alternative to the closing, and even good-faith bargaining over it may both be futile and cause the employer additional loss.

There is an important difference, also, between permitted bargaining and mandated bargaining. Labeling this type of decision mandatory could afford a union a powerful tool for achieving delay, a power that might be used to thwart management’s intentions in a manner unrelated to any feasible solution the union might propose. See Comment, “Partial Terminations” — A Choice Between Bargaining Equality and Economic Efficiency, 14 UCLA L. Rev. 1089, 1103-1105 (1967). In addition, many of the cases before the Board have involved, as this one did, not simply a refusal to bargain over the decision, but a refusal to bargain at all, often coupled with other unfair labor practices. See, e. g., Electrical Products Div. of Midland-Ross Corp. v. NLRB, 617 F. 2d 977 (CA3 1980), cert. denied, 449 U. S. 871 (1981); NLRB v. Amoco Chemicals Corp., 529 F. 2d 427 (CA5 1976); Royal Typewriter Co. v. NLRB, 533 F. 2d 1030 (CA8 1976); NLRB v. American Mfg. Co., 351 F. 2d 74 (CA5 1965) (subcontracting); Smyth Mfg. Co., 247 N. L. R. B. 1139 (1980). In these cases, the employer’s action gave the Board reason to order remedial relief apart from access to the decisionmaking process. It is not clear that a union would be equally dissatisfied if an employer performed all its bargaining obligations apart from the additional remedy sought here.

While evidence of current labor practice is only an indication of what is feasible through collective bargaining, and not a binding guide, see Chemical Workers, 404 U. S., at 176, that evidence supports the apparent imbalance weighing against mandatory bargaining. We note that provisions giving unions a right to participate in the decisionmaking process concerning alteration of the scope of an enterprise appear to be relatively rare. Provisions concerning notice and “effects” bargaining are more prevalent. See II BNA, Collective Bargaining Negotiations and Contracts § 65:201-233 (1981); U. S. Dept. of Labor, Bureau of Labor Statistics, Bull. 2065, Characteristics of Major Collective Bargaining Agreements, Jan. 1, 1978, pp. 96, 100, 101, 102-103 (1980) (charting provisions giving interplant transfer and relocation allowances; advance notice of layoffs, shutdowns, and technological changes; and wage-employment guarantees; no separate tables on decision-bargaining, presumably due to rarity). See also IT. S. Dept, of Labor, Bureau of Labor Statistics, Bull. No. 1425-10, Major Collective Bargaining Agreements, Plant Movement, Transfer, and Relocation Allowances (July 1969).

Further, the presumption analysis adopted by the Court of Appeals seems ill-suited to advance harmonious relations between employer and employee. An employer would have difficulty determining beforehand whether it was faced with a situation requiring bargaining or one that involved economic necessity sufficiently compelling to obviate the duty to bargain. If it should decide to risk not bargaining, it might be faced ultimately with harsh remedies forcing it to pay large amounts of backpay to employees who likely would have been discharged regardless of bargaining, or even to consider reopening a -failing operation. See, e. g., Electrical Products Div. of Midland-Ross Corp., 239 N. L. R. B. 323 (1978), enf’d, 617 F. 2d 977 (CA3 1980), cert. denied, 449 U. S. 871 (1981). Cf. Lever Brothers Co. v. International Chemical Workers Union, 554 F. 2d 115 (CA4 1976) (enjoining plant closure and transfer to permit negotiations). Also, labor costs may not be a crucial circumstance in a particular economically based partial termination. See, e. g., NLRB v. International Harvester Co., 618 F. 2d 85 (CA9 1980) (change in marketing structure); NLRB v. Thompson Transport Co., 406 F. 2d 698 (CA10 1969) (loss of major customer). And in those cases, the Board’s traditional remedies may well be futile. See ABC Trans-National Transport, Inc. v. NLRB, 642 F. 2d 675 (CA3 1981) (although employer violated its “duty” to bargain about freight terminal closing, court refused to enforce order to bargain). If the employer intended to try to fulfill a court’s direction to bargain, it would have difficulty determining exactly at what stage of its deliberations the duty to bargain would arise and what amount of bargaining would suffice before it could implement its decision. Compare Burns Ford, Inc., 182 N. L. R. B. 753 (1970) (one week’s notice of layoffs sufficient), and Hartmann Luggage Co., 145 N. L. R. B. 1572 (1964) (entering into executory subcontracting agreement before notifying union not a violation since contract not yet final), with Royal Plating & Polishing Co., 148 N. L. R. B. 545, 555 (1964), enf. denied, 350 F. 2d 191 (CA3 1965) (two weeks’ notice before final closing of plant inadequate). If an employer engaged in some discussion, but did not yield to the union’s demands, the Board might conclude that the employer had engaged in “surface bargaining,” a violation of its good faith. See NLRB v. Reed & Prince Mfg. Co., 205 F. 2d 131 (CA1), cert. denied, 346 U. S. 887 (1953). A union, too, would have difficulty determining the limits of its prerogatives, whether and when it could use its economic powers to try to alter an employer’s decision, or whether, in doing so, it would trigger sanctions from the Board. See, e. g., International Offset Corp., 210 N. L. R. B. 854 (1974) (union’s failure to realize that shutdown was imminent, in view of successive advertisements, sales of equipment, and layoffs, held a waiver of right to bargain); Shell Oil Co., 149 N. L. R. B. 305 (1964) (union waived its right to bargain by failing to request meetings when employer announced intent to transfer a few days before implementation).

We conclude that the harm likely to be done to an employer’s need to operate freely in deciding whether to shut down part of its business purely for economic reasons outweighs thé incremental benefit that might be gained through the union’s participation in making the decision, and we hold that the decision itself is not part of § 8 (d)’s “terms and conditions,” see n. 12, supra, over which Congress has mandated bargaining.

B

In order to illustrate the limits of our holding, we turn again to the specific facts of this case. First, we note that when petitioner decided to terminate its Greenpark contract, it had no .intention to replace the discharged employees or to move that operation elsewhere. Petitioner’s sole purpose was to reduce its economic loss, and the union made no claim of antiunion animus. In addition, petitioner’s dispute with Greenpark was solely over the size of the management fee Greenpark was willing to pay. The union had no control or authority over that fee. The most that the union could have offered would have been advice and concessions that Greenpark, the third party upon whom rested the success or failure of the contract, had no duty even to consider. These facts in particular distinguish this case from the subcontracting issue presented in Fibreboard. Further, the union was not selected as the bargaining representative or certified until well after petitioner’s economic difficulties at Greenpark had begun. We thus are not faced with an employer’s abrogation of ongoing negotiations or an existing bargaining agreement. Finally, while petitioner’s business enterprise did not involve the investment of large amounts of capital in single locations, we do not believe that the absence of “significant investment or withdrawal of capital,” General Motors Corp., GMC Truck & Coach Div., 191 N. L. R. B., at 952, is crucial. The decision to halt work at this specific location represented a significant change in petitioner’s operations, a change not unlike opening a new line of business or going out of business entirely.

The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Section 8 (d) of the National Labor Relations Act, as amended, requires employers and employee representatives “to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” 29 U. S. C. § 158 (d). The question in this case is whether First National Maintenance Corporation’s decision to terminate its Greenpark Care Center operation and to discharge the workers employed in that operation was a decision with respect to “terms and conditions of employment” within the meaning of the Act, thus rendering its failure to negotiate with the union unlawful.

As this Court has noted, the words “terms and conditions of employment” plainly cover termination of employment resulting from a management decision to close an operation. Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, 210 (1964). As the Court today admits, the decision to close an operation “touches on a matter of central and pressing concern to the union and its member employees.” Ante, at 677. Moreover, as the Court today further concedes, Congress deliberately left the words “terms and conditions of employment” indefinite, so that the NLRB would be able to give content to those terms in light of changing industrial conditions. Ante, at 675, and n. 14. In the exercise of its congres-sionally delegated authority and accumulated expertise, the Board has determined that an employer’s decision to close part of its operations affects the “terms and conditions of employment” within the meaning of the Act, and is thus a mandatory subject for collective bargaining. Ozark Trailers, Inc., 161 N. L. R. B. 561 (1966). Nonetheless, the Court today declines to defer to the Board’s decision on this sensitive question of industrial relations, and on the basis of pure speculation reverses the judgment of the Board and of the Court of Appeals. I respectfully dissent.

The Court bases its decision on a balancing test. It states that “bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” Ante, at 679. I cannot agree with this test, because it takes into account only the interests of management; it fails to consider the legitimate employment interests of the workers and their union. Cf. Brockway Motor Trucks v. NLRB, 582 F. 2d 720, 734-740 (CA3 1978) (balancing of interests of workers in retaining their jobs against interests of employers in maintaining unhindered control over corporate direction). This one-sided approach hardly serves “to foster in a neutral manner” a system for resolution of these serious, two-sided controversies. See ante, at 680-681.

Even if the Court’s statement of the test were accurate, I could not join in its application, which is based solely on speculation. Apparently, the Court concludes that the benefit to labor-management relations and the collective-bargaining process from negotiation over partial closings is minimal, but it provides no evidence to that effect. The Court acknowledges that the union might be able to offer concessions, information, and alternatives that might obviate or forestall the closing, but it then asserts that “[i]t is unlikely, however, that requiring bargaining over the decision . . . will augment this flow of information and suggestions.” Ante, at 681. Recent experience, however, suggests the contrary. Most conspicuous, perhaps, were the negotiations between Chrysler Corporation and the United Auto Workers, which led to significant adjustments in compensation and benefits, contributing to Chrysler’s ability to remain afloat. See Wall Street Journal, Oct. 26, 1979, p. 3, col. 1. Even where labor costs are not the direct cause of a company’s financial difficulties, employee concessions can often enable the company to continue in operation — if the employees have the opportunity to offer such concessions.

The Court further presumes that management’s need for “speed, flexibility, and secrecy” in making partial closing decisions would be frustrated by a requirement to bargain. Ante, at 682-683. In some cases the Court might be correct. In others, however, the decision will be made openly and deliberately, and considerations of “speed, flexibility, and secrecy” will be inapposite. Indeed, in view of management’s admitted duty to bargain over the effects of a closing, see ante, at 677-678, n. 15, it is difficult to understand why additional bargaining over the closing itself would necessarily unduly delay or publicize the decision.

I am not in a position to judge whether mandatory bargaining over partial closings in all cases is consistent with our national labor policy, and neither is the Court. The primary responsibility to determine the scope of the statutory duty to bargain has been entrusted to the NLRB, which should not be reversed by the courts merely because they might prefer another view of the statute. Ford Motor Co. v. NLRB, 441 U. S. 488, 495-497 (1979); see NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963). I therefore agree with the Court of Appeals that employers presumptively have a duty to bargain over a decision to close an operation, and that this presumption can be rebutted by a showing that bargaining would be futile, that the closing was due to emergency financial circumstances, or that, for some other reason, bargaining would not further the purposes of the National Labor Relations Act. 627 F. 2d 596, 601 (CA2 1980). I believe that this approach is amply supported by recent decisions of the Board. E. g., Brooks-Scanlon, Inc., 246 N. L. R. B. 476, 102 LRRM 1606 (1979); Raskin Packing Co., 246 N. L. R. B. 78, 102 LRRM 1489 (1979); M. & M. Transportation Co., 239 N. L. R. B. 73 (1978). With respect to the individual facts of this case, however, I would vacate the judgment of the Court of Appeals, and remand to the Board for further examination of the evidence. See SEC v. Chenery Corp., 318 U. S. 80, 94-95 (1943).

       The record does not show the precise dimension of petitioner’s business. See 242 N. L. R. B. 462, 464 (1979). One of the owners testified that petitioner at that time had “between two and four” other nursing homes as customers. Ibid. The Administrative Law Judge hypothesized, however: “This is a large Company. For all I know, the 35 men at this particular home were only a small part of its total business in the New York area.” Id., at 465.

       The record does not disclose how the contract’s 30-day written notice provision was satisfied. In any event, the parties make no point of any shortage in the notice.

       The union was certified on May 11, 1977. App. in No. 79-4167 (CA2), p. 50.

       The Administrative Law Judge rejected petitioner’s contention that it had satisfied, by that single phone call to Wecker, its duty to bargain about the termination.

       The judge further found that petitioner’s “regular and usual” method of operation involved “taking on, finishing, or discontinuing this or that particular job,” 242 N. L. R. B., at 466, and that “[t]here was no capital involved when it decided to terminate the Greenpark job. The closing of this one spot in no sense altered the nature of its business, nor did it substantially affect its total size.” Ibid. The Administrative Law Judge therefore found inapplicable the Board’s ruling in Brockway Motor Trucks, Division of Mack Trucks, Inc., 230 N. L. R. B. 1002, 1003 (1977), enf. denied, 582 F. 2d 720 (CA3 1978), that an employer’s decision to close part of its business is not a mandatory subject of bargaining if it involves such a “ ‘significant investment or withdrawal of capital’ as to ‘affect the scope and ultimate direction of an enterprise,’ ” quoting from General Motors Corp., GMC Truck & Coach Div., 191 N. L. R. B. 951, 952 (1971).

       Because the court adopted different grounds for enforcement of the Board’s order, it was error to enforce without a remand to the Board for further examination of the evidence and proper factfinding. NLRB v. Pipefitters, 429 U. S. 507, 522, n. 9 (1977); SEC v. Chenery Corp., 318 U. S. 80, 95 (1943).

       The Court of Appeals in this case, for example, agreed, 627 F. 2d, at 601, with the Third Circuit in Brockway Motor Trucks v. NLRB, 582 F. 2d 720 (1978), that a presumption in favor of bargaining was to be established, but it analyzed differently how that presumption would be rebutted. The Third Circuit had decided that the competing interests of the employer and the employees, under the particular circumstances, must be weighed, and it had remanded the case before it to the Board for fact-finding into the circumstances behind the partial closing. See also Equitable Gas Co. v. NLRB, 637 F. 2d 980 (CA3 1981) (subcontracting); ABC Trans-National Transport, Inc. v. NLRB, 642 F. 2d 675 (CA3 1981) (partial closing); NLRB v. Royal Plating & Polishing Co., 350 F. 2d 191 (CA3 1965) (partial closing). Several courts have agreed with the Second Circuit. See, e. g., Davis v. NLRB, 617 F. 2d 1264 (CA7 1980) (change of full-service restaurant to self-service cafeteria); NLRB v. Production Molded Plastics, Inc., 604 F. 2d 451 (CA6 1979) (plant closing).

       See, e. g., NLRB v. International Harvester Co., 618 F. 2d 85 (CA9 1980); NLRB v. Adams Dairy, Inc., 350 F. 2d 108 (CA8 1965), cert. denied, 382 U. S. 1011 (1966); NLRB v. Transmarine Navigation Corp., 380 F. 2d 933 (CA9 1967); Royal Typewriter Co. v. NLRB, 533 F. 2d 1030 (CA8 1976); NLRB v. Rapid Bindery, Inc., 293 F. 2d 170 (CA2 1961); NLRB v. Thompson Transport Co., 406 F. 2d 698 (CA10 1969).

       See, e. g., Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F. 2d 254 (CA8 1970); NLRB v. Drapery Mfg. Co., 425 F. 2d 1026 (CA8 1970); NLRB v. William J. Burns International Detective Agency, Inc., 346 F. 2d 897 (CA8 1965).

       Compare National Car Rental System, Inc., 252 N. L. R. B. 159, 161 (1980) (employer’s decision to terminate car leasing operations at' one location not a mandatory subject because “ ‘essentially financial and managerial in nature,’ involving a ‘significant investment or withdrawal of capital, affecting the scope and ultimate direction of an enterprise,’ ” quoting from General Motors Corp., GMC Truck & Coach Div., 191 N. L. R. B., at 952), and Summit Tooling Co., 195 N. L. R. B. 479, 480 (1972) (decision to close a subsidiary not a mandatory subject because “its practical effect was to take the Respondent out of the business of manufacturing tool and tooling products”), with Ozark Trailers, Inc., 161 N. L. R. B. 561, 567, 568 (1966) (employer’s decision to shut down one of multiple plants was a mandatory subject because it was “a decision directly affecting terms and conditions of employment” and “interests of employees are of sufficient importance that their representatives ought to be consulted in matters affecting them”). See also Kingwood Mining Co., 210 N. L. R. B. 844 (1974), aff'd sub nom. United Mine Workers v. NLRB, 169 U. S. App. D. C. 301, 515 F. 2d 1018 (1975).

       “Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife. This is such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice and requires no citation of instances.” NLRB v. Jones & Laughlin Steel Corp., 301 U. S., at 42 (upholding the constitutionality of the Act).

       Sections 8 (a) (5) and 8 (b) (3) of the Act make it an unfair labor practice for an employer and union representative, respectively, “to refuse to bargain collectively.” 29 U. S. C. §§158 (a) (5) and 158(b)(3). Section 8 (d), added, as was §8 (b)(3), to the Act by the amendatory Labor Management Relations Act, 1947, 61 Stat. 136, defines the duty to bargain as
      “the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment ....’’ 29 TJ. S. C. § 158 (d).
      Section 9 (a) further specifies that
      “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment ...” 29 U. S. C. §159 (a).

       A matter that is not a mandatory subject of bargaining, unless it is illegal, may be raised at the bargaining table to be discussed in good faith, and the parties may incorporate it into an enforceable collective-bargaining agreement. Labor and management may not, however, insist on it to the point of impasse. NLRB v. Borg-Warner Corp., 356 U. S. 342 (1958).

       In enacting the Labor Management Relations Act, 1947, Congress rejected a proposal in the House to limit the subjects of bargaining to
      “(i) [w]age rates, hours of employment, and work requirements; (ii) procedures and practices relating to discharge, suspension, lay-off, recall, seniority, and discipline, or to promotion, demotion, transfer and assignment within the bargaining unit; (iii) conditions, procedures, and practices governing safety, sanitation, and protection of health at the place of employment; (iv) vacations and leaves of absence; and (v) administrative and procedural provisions relating to the foregoing subjects.” H. R. 3020 §2 (11), 80th Cong., 1st Sess. (1947).
      The adoption, instead, of the general phrase now part of § 8 (d) was clearly meant to preserve future interpretation by the Board. See H. R. Rep. No. 245, 80th Cong., 1st Sess., 71 (1947) (minority report) (“The appropriate scope of collective bargaining cannot be determined by a formula; it will inevitably depend upon the traditions of an industry, the social and political climate at any given time, the needs of employers and employees, and many related factors. What are proper subject matters for collective bargaining should be left in the first instance to employers and trade-unions, and in the second place, to any administrative agency skilled in the field and competent to devote the necessary time to a study of industrial practices and traditions in each industry or area of the country, subject to review by the courts. It cannot and should not be strait-jacketed by legislative enactment”); H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 34-35 (1947). Specific references in the legislative history to plant closings, however, are inconclusive. See 79 Cong. Rec. 7673, 9682 (1935) (comments of Sen. Walsh and Rep. Griswold).

       There is no doubt that petitioner was under a duty to bargain about the results or effects of its decision to stop the work at Greenpark, or that it violated that duty. Petitioner consented to enforcement of the Board’s order concerning bargaining over the effects of the closing and has reached agreement with the union on severance pay. App. in No. 79-4167 (CA2), pp. 21-22.

       “The Act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer ‘from refusing to make a collective contract and hiring individuals on whatever terms’ the employer ‘may by unilateral action determine.’ . . . The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.” NLRB v. Jones & Laughlin Steel Corp., 301 U. S., at 45. Cf. John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 549 (1964) (“The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship”).

       The employer has no obligation to abandon its intentions or to agree with union proposals. On proper subjects, it must meet with the union, provide information necessary to the union’s understanding of the problem, and in good faith consider any proposals the union advances. In concluding to reject a union’s position as to a mandatory subject, however, it must face the union’s possible use of strike power. See generally Fleming, The Obligation to Bargain in Good Faith, 47 Va. L. Rev. 988 (1961).

       The subjects over which mandatory bargaining has been required have changed over time. Employers and unions have been required to bargain over such diverse topics as profit-sharing plans, Winn-Dixie Stores, Inc. v. NLRB, 567 F. 2d 1343 (CA5), cert. denied, 439 U. S. 985 (1978); layoffs and recalls, see Awrey Bakeries, Inc. v. NLRB, 548 F. 2d 138 (CA6 1976); contractual clauses concerning race discrimination, see Wichita Eagle & Beacon Publishing Co., 222 N. L. R. B. 742 (1976) ; and “most favored nation” clauses, Dolly Madison Industries, Inc., 182 N. L. R. B. 1037 (1970). See also Borg-Warner, 356 U. S., at 353 (Harlan, J., concurring in part and dissenting in part).

       We are aware of past instances where unions have aided employers in saving failing businesses by lending technical assistance, reducing wages and benefits or increasing production, and even loaning part of earned wages to forestafi closures. See S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 845-851 (1960); C. Golden & H. Rutenberg, The Dynamics of Industrial Democracy 263-291 (1942). See also United Steel Workers of America, Local No. 1330, v. United States Steel Corp., 492 F. Supp. 1 (ND Ohio), aff’d in part and vacated in part, 631 F. 2d 1264 (CA6 1980) (union sought to purchase failing plant); 104 LRR 239 (1980) (employee ownership plan instituted to save company); id., at 267-268 (union accepted pay cuts to reduce plant’s financial problems). These have come about without the intervention of the Board enforcing a statutory requirement to bargain.

       See International Assn. of Machinists & Aerospace Workers v. Northeast Airlines, Inc., 473 F. 2d 549, 556-557 (CA1), cert. denied, 409 U. S. 845 (1972); Raskin Packing Co., 246 N. L. R. B. No. 15 (1979); M&M Transportation Co., 239 N. L. R. B. 73 (1978); Goetz, The Duty to Bargain About Changes in Operations, 1964 Duke L. J. 1, 9-10. Cf. Detroit Edison Co. v. NLRB, 440 U. S. 301, 316 (1979) (noting the “danger of inadvertent leaks” in giving union confidential information).

       See ABC Trans-National Transport, Inc. v. NLRB, 642 F. 2d 675 (CA3 1981); Loomis & Herman, Management’s Reserved Rights and the NLRB — An Employer’s View, 19 Lab. L. J. 695 (1968); Comment, “Partial Terminations” — A Choice Between Bargaining Equality and Economic Efficiency, 14 UCLA L. Rev. 1089 (1967).

       In this opinion we of course intimate no view as to other types of management decisions, such as plant relocations, sales, other kinds of subcontracting, automation, etc., which are to be considered on their particular facts. See, e. g., International Ladies’ Garment Workers Union v. NLRB, 150 U. S. App. D. C. 71, 463 F. 2d 907 (1972) (plant relocation predominantly due to labor costs); Weltronic Co. v. NLRB, 419 F. 2d 1120 (CA6 1969) (decision to move plant three miles), cert. denied, 398 U. S. 938 (1970); Dan Dee West Virginia Corp., 180 N. L. R. B. 534 (1970) (decision to change method of distribution, under which employee-drivers became independent contractors); Young Motor Truck Service, Inc., 156 N. L. R. B. 661 (1966) (decision to sell major portion of business). See also Schwarz, Plant Relocation or Partial Termination — The Duty to Decision-Bargain, 39 Ford. L. Rev. 81, 100-102 (1970).

       Despite the contentions of amicus AFL-CIO our decision in Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330 (1960), does not require that we find bargaining over this partial closing decision mandatory. In that case, a union certified as bargaining agent for certain railroad employees requested that the railroad bargain over its decision to close down certain stations thereby eliminating a number of jobs. When the union threatened to strike over the railroad’s refusal to bargain on this issue, the railroad sought an injunction in federal court. Construing the scope of bargaining required by § 2, First, of the Railway Labor Act, 45 U. S. C. § 152, First, the Court held that the union’s effort to negotiate was not “an unlawful bargaining demand,” 362 U. S., at 341, and that the District Court was precluded from enjoining the threatened strike by § 4 of the Norris-LaGuardia Act, 29 U. S. C. § 104, which deprives federal courts of “jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute . . . from . . . [c] easing or refusing to perform any work. . . .” Although the Court in part relied on an expansive interpretation of § 2, First, which requires railroads to “exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions,” and § 13 (c) of the Norris-LaGuardia Act, 29 U. S. C. § 113 (c), defining “labor dispute” as “any controversy concerning terms or conditions of employment,” its decision also rested on the particular aims of the Railway Labor Act and national transportation policy. See 362 U. S., at 336-338. The mandatory scope of bargaining under the Railway Labor Act and the extent of the prohibition against injunctive relief contained in Norris-LaGuardia are not coextensive with the National Labor Relations Act and the Board’s jurisdiction over unfair labor practices. See Chicago & N. W. R. Co. v. Transportation Union, 402 U. S. 570, 579, n. 11 (1971) (“parallels between the duty to bargain in good faith and the duty to exert every reasonable effort, like all parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care and with full awareness of the differences between the statutory schemes”). Cf. Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970); Buffalo Forge Co. v. Steelworkers, 428 U. S. 397 (1976).

      Indeed, in this case, the Court of Appeals found: “On the record, . . . there is sufficient reason to believe that, given the opportunity, the union might have made concessions, by accepting reduction in wages or benefits (take-backs) or a reduction in the work force, which would in part or in whole have enabled Greenpark to give FNM an increased management fee. At least, if FNM had bargained over its decision to close, that possibility would have been tested, and management would still have been free to close the Greenpark operation if bargaining did not produce a solution.” 627 F. 2d 596, 602 (CA2 1980).


author: Justice Stevens Justice Stewart,

text:
    MICHIGAN v. SUMMERS
    No. 79-1794.
    Argued February 25, 1981
    Decided June 22, 1981
    Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 706.

      Timothy A. Baughman argued the cause for petitioner. With him on the brief was William L. Cabalan.

      Gerald M. Lorence argued the cause and filed a brief for respondent.

      Elliott Schulder argued the cause for the United States as amicus curiae urging reversal. With him on the brief were
      Solicitor General McCree, Assistant Attorney General Hey-mann, and Deputy Solicitor General Frey.

      Bruce J. Ennis, Jr., argued the cause for the American Civil Liberties Union as amicus curiae urging affirmance. With him on the brief was Lawrence Herman.

        David Crump and Michael C. Kuhn filed a brief for John B. Holmes, Jr., et al. as amici curiae urging reversal.

   Justice Stevens

delivered the opinion of the Court.

As Detroit police officers were about to execute a warrant to search a house for narcotics, they encountered respondent descending the front steps. They requested his assistance in gaining entry and detained him while they searched the premises. After finding narcotics in the basement and ascertaining that respondent owned the house, the police arrested him, searched his person, and found in his coat pocket an envelope containing 8.5 grams of heroin.

Respondent was charged with possession of the heroin found on his person. He moved to suppress the heroin as the product of an illegal search in violation of the Fourth Amendment, and the trial judge granted the motion and quashed the information. That order was affirmed by a divided panel of the Michigan Court of Appeals, 68 Mich. App. 571, 243 N. W. 2d 689, and by the Michigan Supreme Court over the dissent of three of its justices. 407 Mich. 432, 286 N. W. 2d 226. We granted the State’s petition for certiorari, 449 U. S. 898, and now reverse.

I

The dispositive question in this case is whether the initial detention of respondent violated his constitutional right to be secure against an unreasonable seizure of his person. The State attempts to justify the eventual search of respondent’s person by arguing that the authority to search premises granted by the warrant implicitly included the authority to search persons on those premises, just as that authority included an authorization to search furniture and containers in which the particular things described might be concealed. But as the Michigan Court of Appeals correctly noted, even if otherwise acceptable, this argument could not justify the initial detention of respondent outside the premises described in the warrant. See 68 Mich. App., at 578-580, 243 N. W. 2d, at 692-693. If that detention was permissible, there is no need to reach the question whether a search warrant for premises includes the right to search persons found there, because when the police searched respondent, they had probable cause to arrest him and had done so. Our appraisal of the validity of the search of respondent’s person therefore depends upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search.

II

In assessing the validity of respondent’s initial detention, we note first that it constituted a “seizure” within the meaning of the Fourth Amendment. The State does not contend otherwise, and the record demonstrates that respondent was not free to leave the premises while the officers were searching his home. It is also clear that respondent was not formally arrested until after the search was completed. The dispute therefore involves only the constitutionality of a pre-arrest “seizure” which we assume was unsupported by probable cause.

In Dunaway v. New York, 442 U. S. 200, the Court reaffirmed the general rule that an official seizure of the person must be supported by probable cause, even if no formal arrest is made. In that case police officers located a murder suspect at a neighbor’s house, took him into custody, and transported him to the police station, where interrogation ultimately produced a confession. Because the suspect was not arrested until after he had confessed, and because he presumably would have been set free if probable cause had not been established during his questioning, the State argued that the pre-arrest detention should not be equated with an arrest and should be upheld as “reasonable” in view of the serious character of the crime and the fact that the police had an articulable basis for suspecting that Dunaway was involved. Id., at 207. The Court firmly rejected the State’s argument, noting that “the detention of petitioner was in important respects indistinguishable from a traditional arrest.” Id., at 212. We stated:

“Indeed, any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.
“The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. ‘The requirement of probable cause has roots that are deep in our history.’ Henry v. United States, 361 U. S. 98, 100 (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant for arrest.’ Id., at 101 (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the ‘reasonableness’ requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States, [338 U. S., at 175-176].” Id., at 213.

Although we refused in Dunaway to find an exception that would swallow the general rule, our opinion recognized that some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment. In these cases the intrusion on the citizen’s privacy “was so much less severe” than that involved in a traditional arrest that “the opposing interests in crime prevention and detection and in the police officer’s safety” could support the seizure as reasonable. Id., at 209.

In the first such case, Terry v. Ohio, 392 U. S. 1, the Court recognized the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause. The Court approved a “frisk” for weapons as a justifiable response to an officer’s reasonable belief that he was dealing with a possibly armed and dangerous suspect. In the second such case, Adams v. Williams, 407 U. S. 143, the Court relied on Terry to hold that an officer could forcibly stop a suspect to investigate an informant’s tip that the suspect was armed and carrying narcotics. And in United States v. Brignoni-Ponce, 422 U. S. 873, the Court held that the special enforcement problems confronted by roving Border Patrol agents, though not sufficient to justify random stops of vehicles near the Mexican border to question their occupants about their citizenship, id., at 882-884, were adequate to support vehicle stops based on the agents’ awareness of specific articulable facts indicating that the vehicle contained illegal aliens. The Court reasoned that the difficulty in patrolling the long Mexican border and the interest in controlling the influx of illegal aliens justified the limited intrusion, usually lasting no more than a minute, involved in the stop. Id., at 878-880. See also United States v. Cortez, 449 U. S. 411.

These cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. In these cases, as in Dunaway, the Court was applying the ultimate standard of reasonableness embodied in the Fourth Amendment. They are consistent with the general rule that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause. But they demonstrate that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams. Therefore, in order to decide whether this case is controlled by the general rule, it is necessary to examine both the character of the official intrusion and its justification.

Ill

Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent’s house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself. Indeed, we may safely assume that most citizens- — unless they intend flight to avoid arrest — -would elect to remain in order to observe the search of their possessions. Furthermore, the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention. Moreover, because the detention in this case was in respondent’s own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station. In sharp contrast to the custodial interrogation in Dunaway, the detention of this respondent was “substantially less intrusive” than an arrest. 442 U. S., at 210.

In assessing the justification for the detention of an occupant of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the “articulable facts” supporting the detention are relevant. Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found. Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers. Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation. Cf. 2 W. LaFave, Search and Seizure §4.9, pp. 150-151 (1978). Finally, the orderly completion of the search may be facilitated if the occupants of the premises are present. Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.

It is also appropriate to consider the nature of the articu-lable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant. We have already noted that the detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant. The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.

In Payton v. New York, 445 U. S. 573, we held that police officers may not enter a private residence to make a routine felony arrest without first obtaining a warrant. In that case we rejected the suggestion that only a search warrant could adequately protect the privacy interests at stake, noting that the distinction between a search warrant and an arrest warrant was far less significant than the interposition of the magistrate’s determination of probable cause between the zealous officer and the citizen:

“It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Id., at 602-603.

That holding is relevant today. If the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

Because it was lawful to require respondent to re-enter and to remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible. The judgment of the Supreme Court of Michigan must therefore be reversed.

It is so ordered.

Justice Stewart,

with whom Justice Brennan and Justice Marshall join,

dissenting.

The Court is correct in stating that “some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment.” Ante, at 697. But to escalate this statement into some kind of a general rule is to ignore the protections that the Fourth Amendment guarantees to us all. There are only two types of seizures that need not be based on probable cause. The first, represented by the Terry line of cases, is a limited stop to question a person and to perform a pat-down for weapons when the police have reason to believe that he is armed and dangerous. E. g., Terry v. Ohio, 392 U. S. 1, 23-24. The second is a brief stop of vehicles near our international borders to question occupants of the vehicles about their citizenship. E. g., United States v. Brignoni-Ponce, 422 U. S. 873, 881.

From these two special exceptions to the general prohibition on seizures not based on probable cause, the Court leaps to the very broad idea that courts may approve a wide variety of seizures not based on probable cause, so long as the courts find, after balancing the law enforcement purposes of the police conduct against the severity of their intrusion, that the seizure appears “reasonable.” Ante, at 700-701, and nn. 11, 12. But those two lines of cases, do not represent some sort of exemplary balancing test for Fourth Amendment cases. Rather, they represent two isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy. The seizure permitted by the Court today, the detention of a person at his home while the police execute a search warrant for contraband inside it, is categorically different from those two special exceptions to the warrant and probable-cause requirement, and poses a significantly greater threat to the protections guaranteed by the Constitution.

I

The common denominator of the Terry cases and the border checkpoint cases is the presence of some governmental interest independent of the ordinary interest in investigating crime and apprehending suspects, an interest important enough to overcome the presumptive constitutional restraints on police conduct. At issue in Terry was “more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Terry v. Ohio, 392 U. S., at 23. Though the officer in Terry was engaged in investigating crime, the governmental purpose that justified the stop and patdown was not the investigation itself, but “the neutralization of danger to the policeman in the investigative circumstance.” Id., at 26. Stating its essential holding, the Court said: “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Id., at 24.

Similarly, in Adams v. Williams, 407 U. S. 143, the officer had received an informant’s tip, not amounting to probable cause, that Williams was carrying narcotics and a gun. The Court held that the officer acted legally in reaching into the car and intruding on Williams’ person to see if Williams indeed was in possession of a lethal weapon. In so holding, the Court made clear that what justified this intrusion on Williams’ person was not the possibility of finding contraband narcotics, but rather the officer’s need to protect himself from harm by seizing the suspected gun: “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . Id., at 146; accord, Pennsylvania v. Mimms, 434 U. S. 106, 110. See Ybarra v. Illinois, 444 U. S. 85, 93.

In United States v. Brignoni-Ponce, supra, the Court approved a limited stop of vehicles by patrols of immigration officers near the Mexican border, but in doing so it stressed the unique governmental interest in preventing the illegal entry of aliens. The Court held that brief stops and inquiries based on less than probable cause to search or arrest were necessary because the entry of undocumented aliens creates “significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services.” 422 U. S., at 878-879. And in United States v. Martinez-Fuerte, 428 U. S. 543, upholding similarly brief stops and inquiries at permanent checkpoints, the Court relied on the unique difficulty of patrolling a 2,000-mile long and virtually uninhabited border area, a difficulty that would prove insuperable if the Government could stop a vehicle only on the basis of probable cause to believe that that particular vehicle contained illegal entrants. Id., at 552.

It seems clear, therefore, that before a court can uphold a detention on less than probable cause on the ground that it is “reasonable” in the light of the competing interests, the government must demonstrate an important purpose beyond the normal goals of criminal investigation, or must demonstrate an extraordinary obstacle to such investigation.

II

What the Court approves today is justified by no such special governmental interest or law enforcement need. There were only two governmental purposes supporting the detention of the respondent. One was “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” Ante, at 702. The other was that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” Ante, at 703. Unlike the law enforcement objectives that justified the police conduct in Terry and the border stop cases, these objectives represented nothing more than the ordinary police interest in discovering evidence of crime and apprehending wrongdoers. And the Fourth and Fourteenth Amendments impose significant restraints upon these traditional police activities, even though the police and the courts may find those restraints unreasonably inconvenient.

If the police, acting without probable cause, can seize a person to make him available for arrest in case probable cause is later developed to arrest him, the requirement of probable cause for arrest has been turned upside down. And if the police may seize a person without probable cause in order to “facilitate” the execution of a warrant that did not authorize his arrest, the fundamental principle that the scope of a search and seizure can be justified only by the scope of the underlying warrant has suffered serious damage. There is no authority in this Court for the principle that the police can engage in searches and seizures without probable cause simply because to do so enhances their ability to conduct investigations which may eventually lead to probable cause. See Davis v. Mississippi, 394 U. S. 721, 726-727.

Beyond the issue of the governmental interest justifying the detention, I question the Court’s view that the detention here is of the limited, unintrusive sort that permits the Court to engage in a “reasonableness” balancing test. As the Court said in Dunaway v. New York, 442 U. S. 200, 210, Terry v. Ohio “defined a special category of Fourth Amendment 'seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures’ reasonable could be replaced by a balancing test.” (Emphasis added.) As we then noted in Dunaway, the patdown searches in Terry, Adams, and Mimms were declared legal because they were extremely limited in time and in the degree of personal intrusion. 442 U. S., at 210-211. The Court also noted that in the border cases, the stops normally consumed less than a minute and involved no more than brief interrogation. Id., at 211. Thus, in the rare cases in which the Court has permitted an independent balancing of interests, the police intrusion has been extremely narrow. Moreover, the Court has required that the stop and inquiry or search be “reasonably related in scope to the justification for their initiation,” Terry v. Ohio, 392 U. S., at 29; see United States v. Brignoni-Ponce, 422 U. S., at 881, and, under that requirement, the unusual governmental or law enforcement interests justifying the patdown stops and border stops have provided a limiting principle ensuring the narrowness of the police action. The detention approved by the Court today, however, is of a very different order.

The explicit holding of the Court is that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Ante, at 705 (footnotes omitted). Though on superficial reading, this language may suggest a minor intrusion of brief duration, a detention “while a proper search is being conducted” can mean a detention of several hours. The police thereby make the person a prisoner in his own home for a potentially very long period of time. Moreover, because of the questionable nature of the governmental interest asserted by the State and acknowledged by the Court in this case, the requirement that the scope of the intrusion be reasonably related to its justification does not provide a limiting principle for circumscribing the detention. If the purpose of the detention is to help the police make the search, the detention can be as long as the police find it necessary to protract the search.

In Dunaway, the Court reaffirmed that the “ ‘long-prevailing standards’ of probable cause embodied ‘the best compromise that has been found for accommodating [the] often opposing interests’ in ‘safeguard [ing] citizens from rash and unreasonable interferences with privacy’ and in ‘seek[ing] to give fair leeway for enforcing the law in the community’s protection.’ ” 422 U. S., at 208, quoting Brinegar v. United States, 338 U. S. 160, 176. Because the present case presents no occasion for departing from this principle, I respectfully dissent.

      The execution of the warrant is described in greater detail in Justice Moody’s opinion for the Michigan Supreme Court:
      “Upon arriving at the named address, Oflieer Roger Lehman saw the defendant go out the front door of the house and proceed across the porch and down the steps. When defendant was asked to open the door he replied that he could not because he left his keys inside, but he could ring someone over the intercom. Dwight Calhoun came to the door, but did not admit the police officers. As a result, the officers obtained entrance to the premises by forcing open the front door. Once admittance had been gained Officer Lehman instructed Officer Conant, previously stationed along the side of the house, to bring the defendant, still on the porch, into the house.
      “After the eight occupants of the house were detained, a search of the premises revealed two plastic bags of suspected narcotics under the bar in the basement. After finding the suspected narcotics in the basement and upon determining that the defendant was the owner of the house, Officer Conant formally arrested the defendant for violation of the Controlled Substances Act of 1971. MCL 336.341 (4) (a); MSA 18.1070 (41) (4) (a). A custodial search conducted by Officer Conant revealed a plastic bag containing suspected heroin in the defendant’s jacket pocket. It is this heroin, discovered on the person of the defendant, that forms the basis of the instant possession charge.” 407 Mich. 432, 441, 286 N. W. 2d 226, 226-227.

       The Fourth Amendment to the United States Constitution provides:
      “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 the persons or things to be seized.”
      The Fourteenth Amendment requires the several States to secure these rights. See Payton v. New York, 445 U. S. 573, 576; Dunaway v. New York, 442 U. S. 200, 207.

       Because there were several other occupants of the house, under Michigan law the evidence that narcotics had been found in the basement of respondent’s house would apparently be insufficient to support a conviction. See People v. Davenport, 39 Mich. App. 252, 197 N. W. 2d 521 (1972). The Michigan Court of Appeals relied on Davenport to conclude that the officers did not have probable cause to arrest or search respondent even though he was the owner of a house in which contraband was found. 68 Mich. App., at 580-582, 243 N. W. 2d, at 692-693. Judge Bashara, dissenting in the Court of Appeals, id., at 585, 243 N. W. 2d, at 695, and the three dissenting justices of the Michigan Supreme Court, 407 Mich., at 450, 463-464, 286 N. W. 2d, at 231, 237, pointed out that Davenport, which concerns the proof necessary to support a conviction, is not dispositive of the question whether the police had probable cause to arrest. See Brinegar v. United States, 338 U. S. 160, 174-176. Regardless of whether the police had probable cause to arrest respondent under Michigan law, probable cause within the meaning of the Fourth Amendment is not at issue here. Respondent does not challenge the conclusion that the evidence found in his home established probable cause to arrest him. See Brief for Respondent 17.

       The “seizure” issue in this case should not be confused with the “search” issue presented in Ybarra v. Illinois, 444 U. S. 85. In Ybarra the police executing a search warrant for a public tavern detained and searched all of the customers who happened to be present. No question concerning the legitimacy of the detention was raised. Rather, the Court concluded that the search of Ybarra was invalid because the police had no reason to believe he had any special connection with the premises, and the police had no other basis for suspecting that he was armed or in possession of contraband. See id., at 90-93. In this case, only the detention is at issue. The police knew respondent lived in the house, and they did not search him until after they had probable cause to arrest and had done so.

       “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U. S. 1, 16.

       The Court noted that Dunaway was “taken from a neighbor’s home fo a police car, transported to a police station, and placed in an interrogation room.” He was not informed that he was free to leave; he would not have been free to leave and would have been physically restrained had he attempted to do so. 442 U. S., at 212.

       In upholding the “frisk” employed by the officer in that case, the Court assumed, without explicitly stating, that the Fourth Amendment does not prohibit forcible stops when the officer has a reasonable suspicion that a crime has been or is being committed. See 392 U. S., at 32-33 (Harlan, J., concurring); id., at 34 (White, J., concurring). In Adams v. Williams, 407 U. S., at 146, the Court made explicit what was implicit in Terry.

      “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.”
      See also United States v. Brignoni-Ponce, 422 U. S. 873; United States v. Cortez, 449 U. S. 411.

       The Court noted that the informant’s tip was insufficient to justify an arrest or search based on probable cause under Spinelli v. United States, 393 U. S. 410, and Aguilar v. Texas, 378 U. S. 108, but the information “carried enough indicia of reliability to justify the officer’s forcible stop of Williams.” 407 U. S., at 147.

       In several cases, the Court has concluded that the absence of any articulable facts available to the officer rendered a detention unreasonable. In Delaware v. Prouse, 440 U. S. 648, 663, the Court held that police could not make random stops of vehicles in order to check drivers’ licenses and vehicle registrations in the absence of “articulable and reasonable suspicion” that the motorist was unlicensed or the ear unregistered. In Brown v. Texas, 443 U. S. 47, we held that a statute requiring individuals to identify themselves was unconstitutional as applied because the police did not have any reasonable suspicion that the petitioner had committed or was committing a crime. Finally, in Ybarra v. Illinois, 444 U. S. 85, we held that police executing a search warrant at a tavern could not invoke Terry to frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous.

       The detention approved in Brignoni-Ponce did not encompass a search of the vehicle. The Court had held in Almeida-Sanchez v. United States, 413 U. S. 266, that such a search must be supported by probable cause. In United States v. Martinez-Fuerte, 428 U. S. 543, the Court held that stops at permanent checkpoints involved even less intrusion to a motorist than the detention by the roving patrol, and thus a stop at such a checkpoint need not even be based on any individualized suspicion.

       In his opinion for the Court in Terry, Chief Justice Warren identified “the central inquiry under the Fourth Amendment” as “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” 392 U. S., at 19. Before analyzing the specific stop and frisk involved in that case, he stated:
      “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief’ that the action taken was appropriate? Cf. Carroll v. United States, 267 U. S. 132 (1925); Beck v. Ohio, 379 U. S. 89, 96-97 (1964).” Id., at 21-22 (footnotes omitted).

       Justice White, concurring in Dunaway, noted that Terry is not “an almost unique exception to a hard-and-fast standard of probable cause.” Rather, “the key principle of the Fourth Amendment is reasonableness — the balancing of competing interests.” 442 U. S., at 219. If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain' circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams. As one commentator observed:
      “It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, locating and examining objects abandoned by the suspect, or talking with other people. If it is known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime. There is no reason to conclude that any investigative methods of the type just listed are inherently objectionable; they might cast doubt upon the reasonableness of the detention, however, if their use makes the period of detention unduly long or involves moving the suspect to another locale.” 3 W. LaFave, Search and Seizure § 9.2, pp. 36-37 (1978).

         “As the Court reiterated just a few years ago, the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ United States v. United States District Court, 407 U. S. 297, 313. And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.” Payton v. New York, 445 U. S., at 585-586.

       Professor LaFave has noted that the reasonableness of a detention may be determined in part by “whether the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon 3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978).

       Moreover, unlike the seizure in Dunaway, which was designed to provide an opportunity for interrogation and did lead to Dunaway’s confession, the seizure in this case is not likely to have coercive aspects likely to induce self-incrimination.

       We do not view the fact that respondent was leaving his house when the officers arrived to be of constitutional significance. The seizure of respondent on the sidewalk outside was no more intrusive than the detention of those residents of the house whom the police found inside.

       The fact that our holding today deals with a case in which the police had a warrant does not, of course, preclude the possibility that comparable police conduct may be justified by exigent circumstances in the absence of a warrant. No such question, however, is presented by this case.

       Justice Jackson recognized the significance of this determination in Johnson v. United States, 333 U. S. 10, 13-14:
      “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” (Footnotes omitted.)

       In refusing to approve seizures based on less than probable cause, the Dunaway Court declined to adopt a “multifactor balancing test of 'reasonable police conduct under the circumstances’ to cover all seizures that do not amount to technical arrests.” The Court noted:
      “[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the 'often competitive enterprise of ferreting out crime.’ ” 442 U. S., at 213.
      As Justice White noted in his concurrence in Dunaway, if police are to have workable rules, the balancing of the competing interests inherent in the Terry principle “must in large part be done on a categorical basis— not in an ad hoc, case-by-case fashion by individual police officers.” 442 U. S., at 219-220. The rule we adopt today does not depend upon such an ad hoc determination, because the officer is not required to evaluate either the quantum of proofo justifying detention or the extent of the intrusion to be imposed by the seizure.

       We do not decide whether the same result would be justified if the search warrant merely authorized a search for evidence. Cf. Zurcher v. Stanford Daily, 436 U. S. 547, 560. See also id., at 581 (Stevens, J., dissenting).

       Although special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case, we are persuaded that this routine detention of residents of a house while it was being searched for contraband pursuant to a valid warrant is not such a case.

       As the Court acknowledges, ante, at 702, the record in this case presents no evidence whatsoever that the police feared any threat to their safety or that of others from the conduct of the respondent, or that they could reasonably have so feared. The Court says that this nevertheless was the “kind of transaction that may give rise to sudden violence . . . .” Ibid. But where the police cannot demonstrate, on the basis of specific and articulable facts, a reasonable belief that a person threatens physical harm to them or others, the speculation that other persons in that circumstance might pose such a threat cannot justify a search or seizure. Ybarra v. Illinois, 444 U. S. 85, 92-93.

       In a perplexing citation, the Court notes our holding in Payton v. New York, 445 U. S. 573, that an arrest warrant based on probable cause justifies entering a person’s home to carry out the arrest, and declares that Payton “is relevant today.” Ante, at 704. But I had thought that the very point of the passage the Cburt quotes from Payton, is that the police would be justified in arresting a person in his own home because they had a warrant for his arrest based upon probable cause to believe that he had violated the criminal law. Since it is the absence of such probable cause that lies at the heart of this case, I fail to understand Payton’s “relevance.”

       The record does not clearly reveal the length of the search in this case. In Harris v. United States, 331 U. S. 145, a Federal Bureau of Investigation search of a one-bedroom apartment for burglar tools and a pair of checks consumed five hours. See also Stanford v. Texas, 379 U. S. 476, 477.

      I also question the Court’s confident assertions about the inoffensive nature of the detention in this case. First, the Court says the detention was innocuous because it was less intrusive than the search that was mandated by the warrant. Ante, at 701. This reasoning is, of course, circular, since the very question of the severity of the detention arises only because it was not based on a warrant or probable cause.
      Second, the Court says that the intrusion was not a serious one because a reasonable-minded citizen would in fact want to be present at a search of his house unless.he was fleeing to avoid arrest. Ibid. But I must infer that the respondent here did not want to be present in his house during the search, else he would not have brought this claim, and the law cannot penalize him for “fleeing arrest” when the police did not have probable cause to arrest him. This second reason amounts to the view that a person cannot assert his rights under the exclusionary rule if he stands to benefit from the exclusion.
      Finally, the Court observes that this sort of detention is not likely to be exploited or unduly prolonged by the police, since the officers are more likely to find the information they seek through the search than through the detention. Ibid. I confess I do not understand this reason. It seems no more than a restatement of the view that the police may detain the person to have him available for arrest when they com-píete the search, but that view merely begs the question whether the potential duration of the search threatens the person with a lengthy detention.

       The Court adverts to this problem only by suggesting that “special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case.” Ante, at 705, n. 21. But the Court provides no criteria for identifying “special circumstances” or for determining when a detention is “prolonged”; in particular, it fails to tell law enforcement officers whether a detention will always be permissible, however protracted, so long as it does not exceed the length of the search of the house. This ambiguity casts doubt on the Court’s assertion, ante, at 705, n. 19, that its holding will not require individual police officers to engage in the sort of on-the-scene, ad hoc legal judgments which pose a serious threat to Fourth and Fourteenth Amendment protections. Dunaway v. New York, 442 U. S. 200, 213.


author: Per Curiam.

text:
    KISSINGER et al. v. HALPERIN et al.
    No. 79-880.
    Argued December 8, 1980
    Decided June 22, 1981

      Solicitor General McCree argued the cause for petitioners. With him on the briefs were Assistant Attorney General Daniel, Deputy Solicitor General Geller, Mark I. Levy, Barbara L. Herwig, and Larry L. Gregg.

      Mark H. Lynch argued the cause for respondents. With him on the brief were John H. F. Shattuck, Alan B. Morrison, and John Cary Sims.

      Briefs of amici curiae urging affirmance were filed by Bertram Zweibon, pro se, for Bertram Zweibon et al.; and by Leon Friedman, Floyd Abrams, Gerald J. Brown, and James C. Goodale for Hedrick Smith et al.

   Per Curiam.

The judgment with respect to petitioners Kissinger, Nixon, and Mitchell is affirmed by an equally divided Court. With respect to petitioner Haldeman, the writ of certiorari is dismissed as improvidently granted.

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