author: Per Curiam. Me. Justice Rehnquist Me. Justice Powell,

text:
    REID v. GEORGIA
    No. 79-448.
    Decided June 30, 1980

       I agree, on the basis of the fragmentary facts apparently relied upon by the DEA agents in this case, that there was no justification for a “seizure.”

   Per Curiam.

The petitioner was indicted in the Superior Court of Fulton County, Ga., for possessing cocaine. At a hearing before trial, he moved to suppress the introduction of the cocaine as evidence against him on the ground that it had been seized from him by an agent of the federal Drug Enforcement Administration (DEA) in violation of his rights under the Fourth and Fourteenth Amendments.

The relevant facts were determined at the pretrial hearing and may be recounted briefly. The petitioner arrived at the Atlanta Airport on a commercial airline flight from Fort Lau-derdale, Fla., in the early morning hours of August 14, 1978. The passengers left the plane in a single file and proceeded through the concourse. The petitioner was observed by an agent of the DEA, who was in the airport for the purpose of uncovering illicit commerce in narcotics. Separated from the petitioner by several persons was another man, who carried a shoulder bag like the one the petitioner carried. As they proceeded through the concourse past the baggage claim area, the petitioner occasionally looked backward in the direction of the second man. When they reached the main lobby of the terminal, the second man caught up with the petitioner and spoke briefly with him. They then left the terminal building together.

The DEA agent approached them outside of the building, identified himself as a federal narcotics agent, and asked them to show him their airline ticket stubs and identification, which they did. The airline tickets had been purchased with the petitioner’s credit card and indicated that the men had stayed in Fort Lauderdale only one day. According to the agent’s testimony, the men appeared nervous during the encounter. The agent then asked them if they would agree to return to the terminal and to consent to a search of their persons and their shoulder bags. The agent testified that the petitioner nodded his head affirmatively, and that the other responded, “Yeah, okay.” As the three of them entered the terminal, however, the petitioner began to run and before he was apprehended, abandoned his shoulder bag. The bag, when recovered, was found to contain cocaine.

The Superior Court granted the petitioner’s motion to suppress the cocaine, concluding that it had been obtained as a result of a seizure of him by the DEA agent without an articu-lable suspicion that he was unlawfully carrying narcotics. The Georgia Court of Appeals reversed. 149 Ga. App. 685, 255 S. E. 2d 71. It held that the stop of the petitioner was permissible, citing Terry v. Ohio, 392 U. S. 1 (1968), since the petitioner, “in a number df respects, fit a 'profile’ of drug couriers compiled by the [DEA].” 149 Ga. App., at 686, 255 S. E. 2d, at 72. The appellate court also concluded that the petitioner had consented to return to the terminal for a search of his person, and that after he had attempted to flee and had discarded his shoulder bag, there existed probable cause for the search of the bag.

The Fourth and Fourteenth Amendments’ prohibition of searches and seizures that are not supported by some objective justification governs all seizures of the person, “including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968) ” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975)1. While the Court has recognized that in some circumstances a person may be detained briefly, without probable cause to arrest him, any curtailment of a person’s liberty by the police must be' supported at least by a reasonable and articulable suspicion that, the person seized is engaged in criminal activity. See Brown v. Texas, 443 U. S. 47, 51 (1979); Delaware v. Prouse, 440 U. S. 648, 661 (1979); United States v. Brignoni-Ponce, supra; Adams v. Williams, 407 U. S. 143, 146-149 (1972); Terry v. Ohio, supra.

The appellate court’s, conclusion in this case that the DEA agent reasonably suspected the petitioner of wrongdoing rested on the fact that the petitioner appeared to the agent to - fit the so-called “drug courier profile,” a somewhat informál compilation of characteristics believed tó be typical of persons unlawfully carrying narcotics. Specifically, the court thought it relevant that (1) the petitioner had arrived from Fort Lauderdale, which the agent testified is a principal place of origin of cocaine sold elsewhere in the country, (2) the petitioner arrived in the early morning, when law enforcement activity is diminished, (3) he and his companion appeared to the agent to be trying to conceal the fact that they were traveling together, and (4) they apparently had no luggage other than their shoulder bags.

We conclude that the agent could not, as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances. Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot, see Terry v. Ohio, supra, at 27-28, this is not such a case. The agent’s belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an “inchoate and unparticularized suspicion or ‘hunch/ 392 U. S., at 27, than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.

For these reasons, the judgment of the appellate court cannot be sustained insofar as it rests on the determination that the DEA agent lawfully seized the petitioner when he approached him outside the airline terminal. Accordingly, the petition for certiorari is granted, the judgment of the Georgia Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Me. Justice Rehnquist

dissents for the reasons stated by Me. Justice Stewaet in his opinion in United States v. Mendenhall, 446 U. S. 544 (1980). He believes that the police conduct involved did not implicate the Fourteenth or Fourth Amendment rights of the petitioners.

Me. Justice Powell,

with whom The Chief Justice and Me. Justice Blackmun join, concurring.

This case is similar in many respects to United States v. Mendenhall, 446 U. S. 544 (1980), in which a defendant observed walking through an airport was stopped by DEA agents and asked for identification. The threshold question in Mendenhall, as here, was whether the agent’s initial stop of the suspect constituted a seizure within the meaning of the Fourth Amendment. Me. Justice Stewart, joined by Me. Justice Rehnquist, was of the opinion that the mere stopping of a person for identification purposes is not a seizure:

“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id., at 554.

Thus, on the basis of facts remarkably similar to those in the present case, Mr. Justice Stewart and Mr. Justice Rehnquist decided that no seizure had occurred.

My concurring opinion in Mendenhall, in which The Chief Justice and Mr. Justice Blackmun joined, did not consider the seizure issue because it had not been raised in the courts below. Even if the stop constituted a seizure, it was my view that the DEA agents had articulable and reasonable grounds for believing that the individual was engaged in criminal activity. Therefore, they did not violate the Fourth Amendment by stopping that person for routine questioning. I expressly stated, however, that my decision not to reach the seizure issue did not necessarily indicate disagreement with the views of Mr. Justice Stewart and Mr. Justice Rehnquist. Id., at 560, n. l.

The state courts, which decided this case before our decision in Mendenhall, did not consider whether the petitioner had been seized. Rather, those courts apparently assumed that the stop for routine identification questioning constituted a seizure, and addressed only the question whether the agent’s actions were justified by articulable and reasonable grounds of suspicion. Because we similarly do not consider the initial seizure question in our decision today, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall.

      “Obviously, not all personal intercourse between policemen and citi- • zens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.” Terry v. Ohio, 392 U. S. 1,19, n. 16 (1968). See also id., at 34 (White, J., concurring) ; id., at 31, 32-33 (Harlan, J.,-concurring).

       Mr. Justice Stewart also noted that “ '[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.’” 446 U. S., at 553, quoting Terry v. Ohio, 392 U. S. 1, 34 (1968) (White, J., concurring). See also ante, at 440, n.

       Mr. Justice White, joined by Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens, filed a dissenting opinion in Mendenhall in which they concluded that the respondent had been detained in violation of the Fourth Amendment.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Marshall

license: Public Domain

text:
    MABRY, COMMISSIONER, ARKANSAS DEPARTMENT OF CORRECTION v. KLIMAS
    No. 79-622.
    Decided June 30, 1980
   Per Curiam.

The respondent was convicted by a jury in an Arkansas court of burglary and grand larceny. In accordance with the recidivist statute then in effect in Arkansas, the members of the jury were instructed that if they found that the respondent had been convicted of three prior felony offenses, they could fix his sentence at not less than 21 and not more than 31% years for both burglary and grand larceny. Evidence was admitted of seven prior felony convictions from Missouri and of six from Arkansas. The jury found that the petitioner had been convicted of three prior felonies, and set his punishment at 31% years for each of the two offenses of which they had found him guilty. The trial judge ordered that the terms were to be served consecutively.

On appeal, the Arkansas Supreme Court reversed, concluding that the evidence of the Missouri convictions was inadmissible for the purpose of enhancing the respondent’s sentence because it did not appear that he had had the assistance of counsel at the trial of those cases. Klimas v. State, 259 Ark. 301, 303-304, 534 S. W. 2d 202, 204, citing Burgett v. Texas, 389 U. S. 109 (1967). The court directed that the respondent be retried unless the State agreed to a reduction of his sentence to three years, the minimum sentence that he could have received for the burglary and larceny offenses. 259 Ark., at 309, 534 S. W. 2d, at 207. On rehearing, the court revised the sentence to 42 years, comprised of the two minimum terms of 21 years authorized for the offenses in the case of a defendant having three past convictions. The court reasoned that since the jury had been required to consider the six Arkansas convictions whose validity the respondent had not disputed at trial, it could not have fixed the punishment at less than 21 years for each offense.

The respondent then sought a writ of habeas corpus in a Federal District Court, alleging that his sentencing after trial had been unconstitutional and was not remedied by the Arkansas Supreme Court’s revision of it to 42 years. The District Court dismissed the suit for want of jurisdiction, but the Court of Appeals reversed, concluding that the respondent had been denied due process of law by the State’s failure to permit him to be resentenced by a jury, in accord with what it understood to be state statutory law. 599 F. 2d 842 (CA8 1979). The Court of Appeals acknowledged that the omission of discretionary resentencing by a jury would not have prejudiced the respondent if, as the Arkansas Supreme Court had concluded, he had received the most lenient sentence authorized by law for the offenses of which he had been convicted. Cf. Hicks v. Oklahoma, 447 U. S. 343 (1980). But the Court of Appeals believed that resentencing was required in this case because the habitual offender statute had been amended since the respondent’s trial, and, if applied to him, the amended statute would provide a lower minimum sentence. Accordingly, while the court expressed uncertainty whether the amendment applied to the respondent, it nonetheless ordered that the District Court issue the writ unless he was resentenced by a jury.

The claim that the respondent is entitled to be resentenced by reason of the amended recidivist statute apparently has not been presented to the state courts. In these circumstances, in the absence of any reason to believe that state judicial remedies would now be unavailable, a federal court is required to stay its hand “to give the State the initial ‘opportunity to pass upon and correct’ alleged violations of . . . federal rights.” Wilwording v. Swenson, 404 U. S. 249, 250 (1971), quoting Fay v. Noia, 372 U. S. 391, 438 (1963). See Picard v. Connor, 404 U. S. 270, 277-278 (1971). The requirement that state remedies first be pursued, codified in the federal habeas corpus statute, 28 U. S. C. §§ 2254 (b) and (c), is particularly appropriate where, as here, the federal constitutional claim arises from the alleged deprivation by state courts of rights created under state law. The Court of Appeals acknowledged that the construction of the statute, plainly a matter for the state courts to decide, was at best uncertain. Obviously, therefore, the state courts can in no sense be said to have arbitrarily denied any right they were asked to accord.

The petition for certiorari and the respondent’s motion for leave to proceed in forma -pauperis are granted, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Marshall

concurs in the judgment.

       The respondent contends that the minimum sentence he could have received was 21, not 42 years, since the trial judge was allegedly authorized to direct that the burglary and larceny sentences run concurrently. This was also the view of Judge Henley, dissenting from the Court of Appeals’ denial of en banc consideration of the case. 603 F. 2d 158, 159 (CA8 1979). Because the question was not decided either by the Arkansas Supreme Court or by the federal courts in this case, we do not now consider it.

       In Hicks v. Oklahoma, this Court held that the right of a criminal defendant under state law to have his punishment fixed in the discretion of the trial jury gave him “a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. See Vitek v. Jones, 445 U. S. 480, 488-489, citing Wolff v. McDonnell, 418 U. S. 539; Greenholtz v. Nebraska Penal Inmates, supra; Morrissey v. Brewer, 408 U. S. 471.” 447 U. S., at 346. The jury in Hicks had fixed the petitioner’s punishment at '40 years, in accord with the mandatory terms of the State’s habitual offender statute then in effect. On appeal, the mandatory provision was determined to be invalid, but the appellate court nonetheless affirmed the 40-year sentence because it was within the range of punishments that a correctly instructed jury could have imposed in any event. This Court concluded that the deprivation of a discretionary jury sentence that could well have been less than 40 years had denied the petitioner due process of law. Ibid.

       The revised statute by its terms applies only to offenses committed after January 1, 1976. See Ark. Stat. Ann. §§41-102 (1) and (3) (1977). The respondent was convicted and sentenced in the trial court in 1975, and the case was reheard by the Arkansas Supreme Court in March 1976, when the court modified his sentence, presumably in accord with the state law then governing the case.