author: Justice Stevens

text:
    UNITED STATES v. MAINE et al.
    No. 35,
    Orig.
    Argued December 12, 1985
    Decided February 25, 1986

      Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Marshall, J., who took no part in the consideration or decision of the case.

      Henry Herrmann, Special Assistant Attorney General of Massachusetts, argued the cause for defendant Commonwealth of Massachusetts. With him on the briefs were Francis X. Bellotti, Attorney General, and William L. Pardee, Assistant Attorney General.

      Deputy Solicitor General Claiborne argued the cause for the United States. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Habicht, and Michael W. Reed.

   Justice Stevens

delivered the opinion of the Court.

The question now before the Court is whether Nantucket Sound qualifies as “internal waters” of the Commonwealth of Massachusetts rather than partly territorial sea and partly high seas as the United States contends. We agree with the Special Master’s conclusion that the Commonwealth’s claim should be rejected.

I

Pursuant to an earlier decree of this Court, the United States and Massachusetts in 1977 filed a joint motion for supplemental proceedings to determine the location of the Massachusetts coastline. After our appointment of a Special Master, 433 U. S. 917 (1977), the parties agreed on a partial settlement, which we approved in 1981. 452 U. S. 429. Left unresolved was the status of Vineyard Sound and Nantucket Sound, a dispute which gave rise to extensive hearings before the Special Master. The Master concluded that Vineyard Sound is a “historic bay” and therefore a part of the inland waters of Massachusetts. However, he reached a contrary conclusion concerning Nantucket Sound. Explaining that the decision concerning Vineyard Sound has only minimal practical significance, the United States has taken no exception to the Master’s report. Massachusetts, however, has excepted to that part of the report concerning Nantucket Sound. Specifically, although Massachusetts acquiesces in the determination that the doctrine of “historic title” does not support its claim, it continues to maintain that it has “ancient title” to Nantucket Sound.

Nantucket Sound is a relatively shallow body of water south of Cape Cod, northeast of the island of Martha’s Vineyard, and northwest of the island of Nantucket. Massachusetts contends that the English Crown acquired title to this territory as a result of discovery and occupation by colonists in the early 17th century and that it succeeded to the Crown’s title by virtue of various Royal Charters or by the Treaty of Paris, which ended the Revolutionary War.

To prove that Great Britain acquired title to Nantucket Sound which it could pass to Massachusetts, much of the evidence presented to the Special Master concerned whether Nantucket Sound would have been considered “county waters” under English law in the 17th century. Under the “county waters” doctrine, waters “inter fauces terrae” or landward of an opening “between the jaws of the land” could be subject to the jurisdiction of the littoral county rather than the Admiral if the jaws were close enough to each other to satisfy a somewhat ambiguous line-of-sight test. Under Lord Coke’s version of the test a person standing on one jaw must be able to “see what is done” on the other jaw; under Lord Hale’s more expansive version, it is merely necessary that “a man may reasonably discern between shore and shore.”

The relevant jaws of land in this case are the southern tip of Monomoy Island, which extends south from the elbow of Cape Cod, and the northern tip of Nantucket Island. At the present time, those two jaws are 9.2 nautical miles apart, but the distance may have been greater in colonial times. In any event, the parties agree that the distance was too great to satisfy Lord Coke’s version of the test. Whether it would meet Lord Hale’s test depends, in the opinion of the Master, on whether the Commonwealth’s burden of proof is merely to persuade by a preponderance of the evidence or by evidence that is “clear beyond doubt.” For purposes of our decision, we put to one side the parties’ argument about the burden and assume that Lord Hale’s test is satisfied. On the assumption that Nantucket Sound could have been considered “county waters” under the common law of England in the 17th century, we nevertheless conclude that Massachusetts cannot prevail under the doctrine of “ancient title” on which it relies.

II

This Court has consistently followed principles of international law in fixing the coastline of the United States. We have relied in particular on the Convention on the Territorial Sea and Contiguous Zone, [1958] 15 U. S. T. 1607, T. I. A. S. No. 5639. The Convention provides that the sovereignty of a state extends to “internal waters.” Art. 1. The Convention also contains a set of rules delimiting those waters. Generally speaking, Article 5(1) defines “internal waters” as those waters landward of a baseline which Article 3 in turn defines as “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.” Of importance to this case, the Convention also includes as a state’s “internal waters” those waters enclosed in “bays” as defined in Article 7. Most of the rules in this Article identify the criteria for defining “juridical bays,” but Article 7(6) further includes as “bays” “so-called ‘historic’ bays” and waters landward of baselines marked when “the straight baseline system provided for in Article 4 is applied.”

In this case, Massachusetts relies exclusively on the provision recognizing “historic bays,” for it is agreed both that the United States has legitimately eschewed the straight baseline method for determining its boundaries, and that Nantucket Sound does not qualify as a juridical bay. Because “historic bay” is not defined in the Convention, we have previously relied on a United Nations study authored by the U. N. Secretariat and entitled Juridical Regime of Historic Waters, Including Historical Bays, [1962] 2 Y. B. Int’l L. Comm’n 1, U. N. Doc. A/CN.4/143 (1962) (hereinafter Juridical Regime). See United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U. S. 93, 101-102 (1985). That study prescribes the three factors of dominion, continuity, and international acquiescence recognized in our own cases for identifying a “historic bay.” The Commonwealth submits that the three-part test is actually the standard for finding “historic title” and that a different doctrine — the doctrine of “ancient title” — is also a sufficient basis for identifying a “historic bay” under Article 7(6) of the Convention. According to Massachusetts, “historic title” is the maritime counterpart of title acquired by adverse possession. It is prescriptive in character because it arises as a result of a state’s exercise of dominion over water that would otherwise constitute either high seas or territorial sea in which all ships enjoy the right of innocent passage. Before this Court, Massachusetts no longer claims “historic title” as it uses the term. Brief for Defendant Massachusetts 4; Reply Brief for Defendant Massachusetts 22.

The Commonwealth instead relies entirely on a claim of “ancient title.” This is the first case in which we have been asked to evaluate such a claim to coastal waters. According to the Juridical Regime, an “ancient title” is based on a state’s discovery and occupation of territory unclaimed by any other sovereign when it was first acquired. To claim “ancient title” to waters that would otherwise constitute high seas or territorial sea, a state must

“affir[m] that the occupation took place before the freedom of the high seas became part of international law. In that case, the State would claim acquisition of the area by an occupation which took place long ago. Strictly speaking, the State would, however, mot assert a historic title, but rather an ancient title based on occupation as an original mode of acquisition of territory. The difference may be subtle but should in the interest of clarity not be overlooked: to base, the title on occupation is to base it on a dear original title which is fortified by long usage” Juridical Regime, at 12 (¶ 71) (emphasis added).

Assuming, arguendo, that waters that would otherwise be considered high seas or territorial sea may be claimed under a theory of “ancient title,” both parties agree that effective “occupation” must have taken place before the freedom of the high seas became a part of international law. Tr. of Oral Arg. 16-17, 34; Brief for Defendant Massachusetts 4. By this analysis, the title must have been perfected no later than the latter half of the 18th century.

H I — I l-H

Although the Special Master discussed the history of [Nantucket Sound], especially [its] role in the development of the colonial economy of Martha’s Vineyard and Nantucket Island,” Report 27, his discussion leaves us in doubt whether he felt that “the colonists’ exploitation of the marine resources of the soun[d] was equivalent to a formal assumption of sovereignty over” it before freedom of the seas became generally recognized. Id., at 58. Because the Commonwealth relied on the same historical evidence to establish both “historic” and “ancient” title, and because “the ultimate responsibility for deciding what are correct findings of fact remains with us” in any event, we have examined for ourselves the pertinent exhibits and transcripts. Our independent review leads us to conclude that the Commonwealth did not effectively “occupy” Nantucket Sound so as to obtain “clear original title” and fortify that title “by long usage” before the seas were recognized to be free.

Massachusetts relies on the colonists’ “intensive and exclusive exploitation” of the marine resources of Nantucket Sound to establish occupation. Reply Brief for Defendant Massachusetts 17. At the outset, we have some difficulty appraising the Commonwealth’s historical evidence because the cases and publications cited to us uniformly discuss occupation in the context of “historic” rather than “ancient” title. Assuming that the parties are correct in their unspoken assumption that occupation sufficient to establish “historic title” resembles that necessary to acquire “ancient title” as well, and further assuming that such title extends to the whole of the waters of the Sound and is not merely a right to exploit its resources, we believe that occupation requires, at a minimum, the existence of acts, attributable to the sovereign, manifesting an assertion of exclusive authority over the waters claimed. The history of the two most publicized cases conveys the international understanding of occupation.

In the Fisheries Case (United Kingdom v. Norway), 1951 I. C. J. 116, the Permanent International Court of Justice upheld Norway’s use of straight baselines (now approved expressly by Article 7(6) of the Convention), in part because Norway had proved a historic claim to the “comparatively shallow” waters between the mainland and the fringing islands known as the Skjaergaard, or “rock rampart.” The court acknowledged that Norwegian fishermen had exploited fishing grounds in this region “from time immemorial,” id., at 127, and that the Bang of Denmark and Norway had excluded fishermen from other states “for a long period, from 1616-1618 until 1906.” Id., at 124; see id., at 142.

Of similar effect is the case of Annakumaru Pillai v. Muthupayal, 27 Indian L. R. Madras 551 (1903). The complainant in that case was a lessee of the Rajah of Ramnad who accused the defendant of stealing chanks (mollusks) from the seabed five miles off the Ramnad coast. The Indian High Court upheld its own jurisdiction and the liability of the defendant “upon the immemorial claim of the land sovereign over this body of water.” P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 16 (1927) (footnote omitted). The Officiating Chief Judge, relying on historical evidence dating from the 6th century B.C. and explaining the concessions under which chanks and pearls were historically gathered by the state’s licensees, declared that “it would be impossible to ignore the fact that for ages in this country, chanks and pearl oysters have been owned and enjoyed by the sovereign as belonging by prerogative right exclusively to him.” 27 Indian L. R. Madras, at 557. “And [because] chanks as well as pearl oysters while still in the beds have always been taken to be the exclusive property of the sovereign, . . . the fishery operations connected therewith have always been carried on under State control and have formed a source of revenue to the exchequer.” Id., at 554. The Officiating Chief Judge concluded that this history demonstrated “exclusive occupation” of “the fisheries in question.” Id., at 566.

We have encountered additional examples of claims to title based on exploitation of marine resources —the pearl fisheries in Australia, Mexico, and Columbia, the oyster beds in the Bay of Granville and off the Irish Coast, the coral beds off the coasts of Algeria, Sardinia, and Sicily, and various grounds in which herring, among other fishes, are found. See T. Fulton, The Sovereignty of the Sea 696-698 (1976 reprint of 1911 ed.). The continuation of apparently longstanding state regulation over these fisheries does not contradict, and is indeed perfectly consistent with, the understanding of occupation reflected in the Norwegian and Indian cases just discussed.

In contrast, the historical evidence introduced by Massachusetts does not show effective occupation of Nantucket Sound. To be sure, the Commonwealth’s expert witness on the history of the Sound, Dr. Louis DeVorsey, a historical geographer, did conclude that Nantucket Sound was part of an “amphibious resource region” because of the “intimate relationship” between the inhabitants of the area and the surrounding waters. By this Dr. DeVorsey meant essentially that the residents took their livelihood from the sea. Although fascinating from a historical geographer’s point of interest, the testimony of Dr. DeVorsey and the exhibits introduced through him do not satisfy the legal threshold for occupation of a coastal water body.

To begin with, the opinion that Nantucket Sound formed part of an “amphibious resource region” does not prove occupation of the entirety of Nantucket Sound. That conclusion was based largely on activity which undoubtedly took place either within territorial waters or on dry land. For example, to evidence the colonists’ close relationship with the sea, Dr. DeVorsey pointed to the use of sand for glassmaking, stone polishing, and farming. Other activities, such as the building of mills powered by the tide, the making of salt from seawater, and the gathering of seaweed for fertilizer and insulation, also fail to establish occupation of Nantucket Sound. Even considering this evidence together with the more water-based pursuits of harvesting oysters and clams and hunting whales, we do not find sufficient evidence of occupation of Nantucket Sound as a whole. Massachusetts concedes that oysters were dug mainly in the harbors, and for decades the colonists’ exploitation of whales was restricted to those that had drifted onto the beach. Although the residents by the mid-18th century had developed a technique for driving whales onto beaches by pursuing them in modified four- to five-man Indian canoes, and they certainly caught shellfish and clams outside the shallow water near shore, there is no satisfactory evidence that these activities occurred over the entirety of Nantucket Sound, and in particular over the portion of the Sound which the United States contends is high seas.

The evidence of occupation adduced by Massachusetts is also deficient because it does not warrant a finding that the colonists asserted any exclusive right to the waters of Nantucket Sound. The closest the Commonwealth comes is a 1672 contract by which the town of Nantucket attempted to engage a whaler by the name of Lopar to “follow the trade of whaling on the island” for two years in exchange for, inter alia, an exclusive license to hunt whales and 10 acres of land. There is no evidence that the contract was carried out (and in particular no record of a conveyance of real property), and no suggestion in the contract that the license was limited, or even especially concerned -with, whaling in Nantucket Sound. Indeed, the contract does not clearly reflect an exclusive proprietary interest in whales anywhere: it may simply represent a covenant on the part of the Nantucket islanders not to compete with the whaling company or companies chartered under the proposed contract. The only other evidence of an assertion of exclusive control was a 1692 Colonial Resolve to build a vessel to protect coastal ships in Vineyard Sound against the depredations of New Yorkers, with whom a dispute was brewing at the time. But this evidence concerning Vineyard Sound merely highlights the lack of any comparable evidence concerning Nantucket Sound. In the absence of evidence limiting use of Nantucket Sound to the inhabitants of its shores, there is no reason to exempt these waters from such rights as innocent passage traditionally enjoyed in common by all members of the international polity.

Even if Massachusetts had introduced evidence of intensive and exclusive exploitation of the entirety of Nantucket Sound, we would still be troubled by the lack of any linkage between these activities and the English Crown. Cf. United States v. Alaska, 422 U. S. 184, 190-191, 203 (1975). Unless we are to believe that the self-interested endeavors of every seafaring community suffice to establish “ancient title” to the waters containing the fisheries and resources it exploits, without regard to continuity of usage or international acquiescence necessary to establish “historic title,” solely because exploitation predated the freedom of the seas, then the Commonwealth’s claim cannot be recognized. Accordingly, we find that the colonists of Nantucket Sound did not effectively occupy that body of water; as a consequence, Great Britain did not obtain title which could devolve upon Massachusetts.

IV

Our determination that Massachusetts had not established clear title prior to freedom of the seas is corroborated by the Commonwealth’s consistent failure to assert dominion over Nantucket Sound since that time. Three examples should suffice to demonstrate that during the 18th and 19th centuries Massachusetts continued to treat Nantucket Sound in a manner inconsistent with its recent characterization of that body as internal waters.

First, in 1847, the Supreme Judicial Court of Massachusetts issued an opinion which is generally understood as having adopted Lord Coke’s more demanding version of the line-of-sight test for determining whether jaws of land enclosed inland waters. Since it is agreed that Nantucket Sound could not qualify as inland waters under the Coke test, the Court’s decision that that test was part of the common law of Massachusetts supports the further conclusion that the Sound was not part of the internal waters of the Commonwealth.

This conclusion was confirmed in 1859 when the Massachusetts Legislature enacted a statute defining the seaward boundary of the Commonwealth at one marine league (or three nautical miles) from the coast. See Acts of 1859, Ch. 289, Mass. Ex. 53. In accordance with' this measure, the statute treated arms of the sea as part of the Commonwealth if the distance between their headlands did not exceed two marine leagues. Thus, the statute replaced the ambiguous line-of-sight test for applying the inter fauces terrae doctrine with a fixed standard of six nautical miles. Since the distance between Monomoy Point and Nantucket Island is admittedly more than six nautical miles, Massachusetts statutory definition of its own coastline excluded Nantucket Sound.

Finally, in 1881, the Massachusetts Legislature enacted a statute directing its Harbor and Land Commission to prepare charts identifying the boundaries that had been established by the 1859 law. Official charts prepared pursuant to that legislation are consistent with the Master’s conclusion that Vineyard Sound was considered part of the Commonwealth, but that Nantucket Sound was not.

It was not until 1971 that Massachusetts first asserted its claim to jurisdiction over Nantucket Sound. There is simply no evidence that the English Crown or its colonists had obtained “clear original title” to the Sound in the 17th century, or that such title was “fortified by long usage.” Without such evidence, we are surely not prepared to enlarge the exception in Article 7(6) of the Convention for historic bays to embrace a claim of “ancient title” like that advanced in this case.

The parties are directed to prepare and submit a decree conforming to the recommendations of the Special Master.

It is so ordered.

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

       In 1968 the United States invoked our original jurisdiction to quiet title „to the seabed along the coast of the Atlantic Ocean. In 1975 we entered a decree affirming the title of the United States to the seabed more than three geographic miles seaward of the coastline, and of the States to the seabed within the 3-geographic-mile zone. United States v. Maine, 423 U. S. 1 (1975). See also United States v. Maine, 420 U. S. 515 (1975). In that decree we reserved jurisdiction which either the “United States or any defendant State [could] invoke ... by filing a motion in this Court for supplemental proceedings.” 423 U. S., at 2.

       According to the Solicitor General, all but 1,000 acres of the submerged lands of Vineyard Sound belong to the Commonwealth of Massachusetts as underlying territorial waters, even under its view that those waters are not inland.

       In particular, the Commonwealth points to the charter granted in 1664 by King Charles II to the Duke of York conveying title to New York, New Jersey, and most of New England, cf. Martin v. Waddell, 16 Pet. 367, 413-414 (1842); Mahler v. Norwich & N. Y. Transp. Co., 36 N. Y. 352, 366 (1866), and to the charter granted in 1691 by the English monarchs William and Mary to the colonists of Massachusetts consolidating into “one reall Province by the Name of Our Province of the Massachusetts Bay in New England” the territories and colonies that were then commonly known as Massachusetts Bay, New Plymouth, “the Province of Main,” and the territory called Accadia or Nova Scotia, see Mass. Ex. 45, p. 8. Alternatively, Massachusetts asserts that it acquired sovereignty over the area by virtue of the Treaty of Paris signed in 1788. Cf. Manchester v. Massachusetts, 139 U. S. 240, 256-257 (1891); Mahler v. Norwich & N. Y. Transp. Co., 35 N. Y., at 356.

       4 E. Coke, Institutes 140 (6th ed. 1681) (“It is no part of the Sea, where one may see what is done of the one part of the water, and of the other, as to see from one Land to the other, that the Coroner shall exercise his office in this ease, and of this the Country may have knowledge; whereby it appeareth that things done there are triable by the Country (that is, by Jury) and consequently not in the Admiral Court”).

       M. Hale, De Jure Maris et Brachiorum ejusdem, cap. iv (1667), reprinted in R. Hall, Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, App. vii (2d ed. 1875) (“That arm or branch of the sea, which lies within the fauces terrae, where a man may reasonably discerne between shore and shore, is or at least may be ■within the body of a county, and therefore within the jurisdiction of the sheriff or coroner”).

       The Special Master rested his conclusion that Massachusetts had to prove its claim “clear beyond doubt” on two cases of this Court and three reports of Special Masters in original jurisdiction cases. See Louisiana Boundary Case, 394 U. S. 11, 77 (1969); United States v. California, 381 U. S. 139, 175 (1965); Report of the Special Master, O. T. 1983, No. 35 Orig., p. 11; Report of the Special Master, O. T. 1974, No. 9 Orig., pp. 18-19; Report of the Special Master, O. T. 1973, No. 52 Orig., p. 42. Cf. United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U. S. 93, 111 (1985).
      Although the Master’s conclusion regarding the burden of proof was the focus of the Commonwealth’s opening brief, we find it unnecessary to address the issue given our disposition of the case. Whatever the measure of proof, Massachusetts concedes that it bears the risk of nonpersuasion. See Brief for Defendant Massachusetts 7.

       See United States v. California, 381 U. S., at 161-167. See also Alabama and Mississippi Boundary Case, 470 U. S., at 98; United States v. Maine (Rhode Island and New York Boundary Case), 469 U. S. 504, 513 (1985); United States v. Alaska, 422 U. S. 184, 188-189 (1975); Louisiana Boundary Case, 394 U. S., at 35.

       See Louisiana Boundary Case, id., at 21 (Convention contains ‘“the best and most workable definitions available’ ” (quoting United States v. California, 381 U. S., at 165)).

       We have previously held that the decision to use the straight baseline system provided for in Article 4 of the Convention rests with the Federal Government. See Alabama and Mississippi Boundary Case, 470 U. S., at 99; Louisiana Boundary Case, 394 U. S., at 72-73; United States v. California, 381 U. S., at 167-168.

       «The term ‘historic bay’ is not defined in the Convention, and there is no complete accord as to its meaning. The Court has stated that a historic bay is a bay ‘over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations.’ United States v. California, 381 U. S., at 172. See also United States v. Alaska, 422 U. S., at 189; Louisiana Boundary Case, 394 U. S., at 23. The Court also has noted that there appears to be general agreement that at least three factors are to be taken into consideration in determining whether a body of water is a historic bay: (1) the exercise of authority over the area by the claiming nation; (2) the continuity of this exercise of authority; and (3) the acquiescence of foreign nations. See United States v. Alaska, 422 U. S., at 189; Louisiana Boundary Case, 394 U. S., at 23-24, n. 27. An authoritative United Nations study concludes that these three factors require that ‘the coastal State must have effectively exercised sovereignty over the area continuously during a time sufficient to create a usage and have done so under the general toleration of the community of States.’ Juridical Regime of Historic Waters, Including Historic Bays 56, U. N. Doc. A/CN.4/143 (1962).” Alabama and Mississippi Boundary Case, 470 U. S., at 101-102 (footnotes omitted).

       One cannot, as a historical matter, point to a precise date on which the international community would have rejected an assertion of sovereignty over Nantucket Sound as contrary to international law. It is clear, however, that such a claim would have become progressively less tenable throughout the 18th century:
      “The seventeenth century marked the heyday of the mare clausum (closed sea) with claims by England, Denmark, Spain, Portugal, Genoa, Tuscany, the Papacy, Turkey, and Venice.
      “In the eighteenth century the position changed completely. Dutch policies had favoured freedom of navigation and fishing in the previous century, and the great publicist Grotius had written against the Portuguese monopoly of navigation and commerce in the East Indies. After the accession of William of Orange to the English throne in 1689 English disputes with Holland over fisheries ceased. However, sovereignty of the sea was still asserted against France, and in general the formal requirement of the salute to the flag was maintained. By the late eighteenth century the claim to sovereignty was obsolete and the requirement of the flag ceremony was ended in 1806. After 1691 extensive Danish claims were reduced by stages to narrow fixed limits. By the late eighteenth century the cannon-shot rule predominated, and claims to large areas of sea faded away.” L. Brownlie, Principles of Public International Law 233-234 (2d ed. 1973) (footnotes omitted).
      “[I]t is an undeniable fact that, since the days of Grotius, the principle of the freedom of the high seas found an ever wider currency and that, after a gradual evolution, it gained the upper hand towards the beginning of the nineteenth century, when it crystallized into a universally accepted principle of international law.” Y. Blum, Historic Titles in International Law §61, pp. 242-243 (1966).
      We find it unnecessary to select a “critical date” upon which the community of states would have rejected a British claim to Nantucket Sound. Because the colonists’ activities changed gradually in character and intensity over time, we need say only that effective “occupation” must have ripened into “clear original title,” “fortified by long usage,” no later than the latter half of the 1700’s.

       The Special Master discussed this history only as regards “historic” title, see Report 27, even though he recognized that “[effective occupation, from a time prior to the victory of the doctrine of freedom of the seas” is necessary “to establish a valid claim to a body of water under ancient title,” id., at 25-26.

        Colorado v. New Mexico, 467 U. S. 310, 317 (1984). See Alabama and Mississippi Boundary Case, 470 U. S., at 101, and cases cited therein.

         The Juridical Regime quotes two definitions of “occupation”:
      “[Occupation] is defined by Oppenheim as follows:
      . “ ‘Occupation is the act of appropriation by a State by which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another State.’
      “A similar definition is given by Fauehille:
      “ ‘Generally speaking, occupation is the taking by a State, with the intention of acting as the owner, of something which does not belong to any other State but which is susceptible of sovereignty.’” Juridical Regime, at 12 (¶ 70).
      On the possible difference between occupation as a mode of original acquisition of territory as contrasted to occupation eventuating in prescriptive acquisition, see M. Strohl, The International Law of Bays 328, n. 27 (1963).

       Because of a division of opinion between the Officiating Chief Judge and the second judge on the two-judge panel, the case was subsequently heard by a three-judge panel. The later panel unanimously agreed with the judgment of the Officiating Chief Judge and with his historical analysis. See Annakumaru Pillai v. Muthupayal, 27 Indian L. R. Madras, at 572.

       Dr. DeVorsey inferred this intimate relationship in part from 17th- and 18th-century maps naming prominent features and attempting to chart the depths of Nantucket Sound. As Dr. DeVorsey acknowledged, however, none of these maps identified Nantucket Sound as a separate body of water even though they did identify other bodies of water such as Cape Cod Bay, Buzzard’s Bay, and, in two instances, Vineyard Sound. These early maps do not support Massachusetts’ contention that the area’s inhabitants established a special relationship with the protected waters of Nantucket Sound as opposed to the surrounding waters and ocean in general.

       The dispute was resolved peacefully, there is no evidence that the vessel was built, and the only other patrol vessel about which Dr. DeVorsey testified was engaged in convoying merchantmen, not in protecting Nantucket Sound.

       See Temple of Preah Vihear, 1962 I. C. J. 6, 61 (separate opinion of Sir Gerald Fitzmaurice) (“It is a general principle of law . . . that a party’s attitude, state of mind or intentions at a later date can be regarded as good evidence — in relation to the same or a closely connected matter — of his attitude, state of mind or intentions at an earlier date also;. . . the existence of a state of fact, or of a situation, at a later date, may furnish good presumptive evidence of its existence at an earlier date also, even where the later situation or state of affairs has in other respects to be excluded from consideration” (citations omitted)).
      While the position of Massachusetts is discussed in text, it bears mention that the United States did not assert sovereignty over Nantucket Sound either. In 1789 the First Congress established a customs enforcement system, which included a number of separate districts in Massachusetts. The statutory definition of the district of Nantucket included “the island of Nantucket” without any reference to adjacent waters, whereas the district of Edgartown, which included Martha’s Vineyard and the Elizabeth Islands, expressly incorporated “all the waters and shores” within Duke’s County. Act of July 31,1789,1 Stat. 31. This distinction was repeated in subsequent legislation in 1790, Act of Aug. 4,1790,1 Stat. 146, and in 1799, Act of Mar. 2, 1799, 1 Stat. 629.

       In Commonwealth v. Peters, 53 Mass. 387, 392 (1847), the Massachusetts high court held:
      “All creeks, havens, coves, and inlets lying within projecting headlands and islands, and all bays and arms of the sea lying within and between lands not so wide but that persons and objects on the one side can be discerned by the naked eye by persons on the opposite side, are taken to be within the body of the county.”
      Chief Judge Shaw’s adoption of the Coke test in Peters is consistent with Judge Story’s earlier exposition in United States v. Grush, 26 F. Cas. 48, 52 (No. 15,268) (CC Mass. 1829):
      “I do not understand by this expression, that it is necessary, that the shores should be so near, that all that is done on one shore could be discerned, and testified to with certainty, by persons standing on the opposite shore; but that objects on the opposite shore might be reasonably discerned, that is, might be distinctly seen with the naked eye, and clearly distinguished from each other.”
      The parties do not disagree with the Master’s conclusion that the American view of the proper test, which followed Coke, differed from the British view, which followed Hale.

       The validity of and any limits to the “ancient title” theory are accordingly reserved for an appropriate case. In view of our decision that the history of Nantucket Sound does not support the acquisition of “ancient title” by Massachusetts, we similarly decline to address the question whether the Commonwealth abandoned or renounced that title, and the antecedent issue of under what standard that judgment should be made.


source: Caselaw Access Project

author:
Justice O’Connor
      Justice Powell, Justice Brennan, Justice White,

license: Public Domain

text:
    NEW YORK v. CLASS
    No. 84-1181.
    Argued November 4, 1985
    Decided February 25, 1986

      O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined, and in Part II of which Brennan, Marshall, and Stevens, JJ., joined. Powell, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 120. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Stevens, JJ., joined, post, p. 122. White, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 131.

      Steven R. Kartagener argued the cause for petitioner. With him on the briefs was Mario Merola.

      Marc C. Cogan argued the cause pro hac vice for respondent. With him on the brief was William E. Hellerstein

        Fred E. Iribau, Wayne W. Schmidt, James P. Manak, David Crump, Daniel B. Hales, James Murphy, and Francis B. Looney filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

In this case, we must decide whether, in order to observe a Vehicle Identification Number (VIN) generally visible from outside an automobile, a police officer may reach into the passenger compartment of a vehicle to move papers obscuring the VIN after its driver has been stopped for a traffic violation and has exited the car. We hold that, in these circumstances, the police officer’s action does not violate the Fourth Amendment.

I

On the afternoon of May 11, 1981, New York City police officers Lawrence Meyer and William McNamee observed respondent Benigno Class driving above the speed limit in a car with a cracked windshield. Both driving with a cracked windshield and speeding are traffic violations under New York law. See N. Y. Veh. & Traf. Law §§375(22), 1180(d) (McKinney 1970). Respondent followed the officers’ ensuing directive to pull over. Respondent then emerged from his car and approached Officer Meyer. Officer McNamee went directly to respondent’s vehicle. Respondent provided Officer Meyer with a registration certificate and proof of insurance, but stated that he had no driver’s license.

Meanwhile, Officer McNamee opened the door of respondent’s car to look for the VIN, which is located on the left doorjamb in automobiles manufactured before 1969. When the officer did not find the VIN on the doorjamb, he reached into the interior of respondent’s car to move some papers obscuring the area of the dashboard where the VIN is located in later model automobiles. In doing so, Officer McNamee saw the handle of a gun protruding about one inch from underneath the driver’s seat. The officer seized the gun, and respondent was promptly arrested. Respondent was also issued summonses for his traffic violations.

It is undisputed that the police officers had no reason to suspect that respondent’s car was stolen, that it contained contraband, or that respondent had committed an offense other than the traffic violations. Nor is it disputed that respondent committed the traffic violations with which he was charged, and that, as of the day of the arrest, he had not been issued a valid driver’s license.

After the state trial court denied a motion to suppress the gun as evidence, respondent was convicted of criminal possession of a weapon in the third degree. See N. Y. Penal Law § 265.02(4) (McKinney 1980). The Appellate Division of the New York Supreme Court upheld the conviction without opinion. 97 App. Div. 2d 741, 468 N. Y. S. 2d 892 (1983). The New York Court of Appeals reversed. It reasoned that the police officer’s “intrusion . . . was undertaken to obtain information and it exposed . . . hidden areas” of the car, and “therefore constituted a search.” 63 N. Y. 2d 491, 495, 472 N. E. 2d 1009, 1011 (1984). Although it recognized that a search for a VIN generally involves a minimal intrusion because of its limited potential locations, and agreed that there is a compelling law enforcement interest in positively identifying vehicles involved in accidents or automobile thefts, the court thought it decisive that the facts of this case “reveal no reason for the officer to suspect other criminal activity [besides the traffic infractions] or to act to protect his own safety.” Id., at 495-496, 472 N. E. 2d, at 1012. The state statutory provision that authorizes officers to demand that drivers reveal their VIN “provided no justification for the officer’s entry of [respondent’s] car.” Id., at 497, 472 N. E. 2d, at 1013. If the officer had taken advantage of that statute and asked to see the VIN, respondent could have moved the papers away himself and no intrusion would have occurred. In the absence of any justification for the search besides the traffic infractions, the New York Court of Appeals ruled that the gun must be excluded from evidence.

We granted certiorari, 471 U. S. 1003 (1985), and now reverse.

II

Respondent asserts that this Court is without jurisdiction to hear this case because the decision of the New York Court of Appeals rests on an adequate and independent state ground. We disagree.

The opinion of the New York Court of Appeals mentions the New York Constitution but once, and then only in direct conjunction with the United States Constitution. 63 N. Y. 2d, at 493, 472 N. E. 2d, at 1010. Cf. Michigan v. Long, 463 U. S. 1032, 1043 (1983). The opinion below makes use of both federal and New York cases in its analysis, generally citing both for the same proposition. See, e. g., 63 N. Y. 2d, at 494, 495, 472 N. E. 2d, at 1011. The opinion lacks the requisite “plain statement” that it rests on state grounds. Michigan v. Long, supra, at 1042, 1044. Accordingly, our holding in Michigan v. Long is directly applicable here:

“[WJhen ... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” 463 U. S., at 1040-1041.

See also California v. Carney, 471 U. S. 386, 389, n. 1 (1985).

Respondent’s claim that the opinion below rested on independent and adequate state statutory grounds is also without merit. The New York Court of Appeals did not hold that §401 of New York’s Vehicle and Traffic Law prohibited the search at issue here, but, in rejecting an assertion of petitioner, merely held that § 401 “provided no justification” for a search. 63 N. Y. 2d, at 497, 472 N. E. 2d, at 1013 (emphasis added). In determining that the police officer’s action was prohibited, the court below looked to the Federal Constitution, not the State’s statute. Moreover, New York adheres to the general rule that, when statutory construction can resolve a case, courts should not decide constitutional issues. See Ashwander v. TV A, 297 U. S. 288, 346-347 (1936) (Brandéis, J., concurring); In re Peters v. New York City Housing Authority, 307 N. Y. 519, 527, 121 N. E. 2d 529, 531 (1954). Since the New York Court of Appeals discussed both statutory and constitutional grounds, we may infer that the court believed the statutory issue insufficient to resolve the case. The discussion of the statute therefore could not have constituted an independent and adequate state ground.

i — I h-i

A

The officer here, after observing respondent commit two traffic violations and exit the car, attempted to determine the VIN of respondent’s automobile. In reaching to remove papers obscuring the VIN, the officer intruded into the passenger compartment of the vehicle.

The VIN consists of more than a dozen digits, unique to each vehicle and required on all cars and trucks. See 49 CFR §571.115 (1984). The VIN is roughly analogous to a serial number, but it can be deciphered to reveal not only the place of the automobile in the manufacturer’s production run, but also the make, model, engine type, and place of manufacture of the vehicle. See § 565.4.

The VIN is a significant thread in the web of regulation of the automobile. See generally 43 Fed. Reg. 2189 (1978). The ease with which the VIN allows identification of a particular vehicle assists the various levels of government in many ways. For the Federal Government, the VIN improves the efficacy of recall campaigns, and assists researchers in determining the risks of driving various makes and models of automobiles. In combination with state insurance laws, the VIN reduces the number of those injured in accidents who go uncompensated for lack of insurance. In conjunction with the State’s registration requirements and safety inspections, the VIN helps to ensure that automobile operators are driving safe vehicles. By making automobile theft more difficult, the VIN safeguards not only property but also life and limb. See 33 Fed. Reg. 10207 (1968) (noting that stolen vehicles are disproportionately likely to be involved in automobile accidents).

To facilitate the VIN’s usefulness for these laudable governmental purposes, federal law requires that the VIN be placed in the plain view of someone outside the automobile:

“The VIN for passenger cars [manufactured after 1969] shall be located inside the passenger compartment. It shall be readable, without moving any part of the vehicle, through the vehicle glazing under daylight lighting conditions by an observer having 20/20 vision (Snellen) whose eye point is located outside the vehicle adjacent to the left windshield pillar. Each character in the VIN subject to this paragraph shall have a minimum height of 4 mm.” 49 CFR §571.115 (S4.6) (1984) (emphasis added).

In Delaware v. Prouse, 440 U. S. 648, 658 (1979), we recognized the “vital interest” in highway safety and the various programs that contribute to that interest. In light of the important interests served by the VIN, the Federal and State Governments are amply justified in making it a part of the web of pervasive regulation that surrounds the automobile, and in requiring its placement in an area ordinarily in plain view from outside the passenger compartment.

B

A citizen does not surrender all the protections of the Fourth Amendment by entering an automobile. See Delaware v. Prouse, supra, at 663; Almeida-Sanchez v. United States, 413 U. S. 266, 269 (1973). Nonetheless, the State’s intrusion into a particular area, whether in an automobile or elsewhere, cannot result in a Fourth Amendment violation unless the area is one in which there is a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). See Oliver v. United States, 466 U. S. 170, 177-180 (1984); Maryland v. Macon, 472 U. S. 463, 469 (1985).

The Court has recognized that the physical characteristics of an automobile and its use result in a lessened expectation of privacy therein:

“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion).

Moreover, automobiles are justifiably the subject of pervasive regulation by the State. Every operator of a motor vehicle must expect that the State, in enforcing its regulations, will intrude to some extent upon that operator’s privacy:

“Automobiles, unlike homes, are subject to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.” South Dakota v. Opperman, 428 U. S. 364, 368 (1976).

See also Cady v. Dombrowski, 413 U. S. 433, 441-442 (1973); California v. Carney, 471 U. S., at 392.

The factors that generally diminish the reasonable expectation of privacy in automobiles are applicable a fortiori to the VIN. As we have discussed above, the VIN plays an important part in the pervasive regulation by the government of the automobile. A motorist must surely expect that such regulation will on occasion require the State to determine the VIN of his or her vehicle, and the individual’s reasonable expectation of privacy in the VIN is thereby diminished. This is especially true in the case of a driver who has committed a traffic violation. See Delaware v. Prouse, supra, at 659 (“The foremost method of enforcing traffic and vehicle safety regulations ... is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be as certained”) (emphasis added). In addition, it is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN’s mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a “search.” See Cardwell v. Lewis, supra, at 588-589. In sum, because of the important role played by the VIN in the pervasive governmental regulation of the automobile and the efforts by the Federal Government to ensure that the VIN is placed in plain view, we hold that there was no reasonable expectation of privacy in the VIN.

We think it makes no difference that the papers in respondent’s car obscured the VIN from the plain view of the officer. We have recently emphasized that efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist. See Oliver v. United States, supra, at 182-184 (placement of “No Trespassing” signs on secluded property does not create “legitimate privacy interest” in marihuana fields). Here, where the object at issue is an identification number behind the transparent windshield of an automobile driven upon the public roads, we believe that the placement of the obscuring papers was insufficient to create a privacy interest in the VIN. The mere viewing of the formerly obscured VIN was not, therefore, a violation of the Fourth Amendment.

C

The evidence that respondent sought to have suppressed was not the VIN, however, but a gun, the handle of which the officer saw from the interior of the car while reaching for the papers that covered the VIN. While the interior of an automobile is not subject to the same expectations of privacy that exist with respect to one’s home, a car’s interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police. We agree with the New York Court of Appeals that the intrusion into that space constituted a “search.” 63 N. Y. 2d, at 495, 472 N. E. 2d, at 1011. Cf. Delaware v. Prouse, 440 U. S., at 653 (“[Shopping an automobile and detaining its occupants constitute a ‘seizure’. . . even though the purpose of the stop is limited and the resulting detention quite brief”). We must decide, therefore, whether this search was constitutionally permissible.

If respondent had remained in the car, the police would have been justified in asking him to move the papers obscuring the VIN. New York law authorizes a demand by officers to see the VIN, see 63 N. Y. 2d, at 496-497, 472 N. E. 2d, at 1012-1013, and even if the state law were not explicit on this point we have no difficulty in concluding that a demand to inspect the VIN, like a demand to see license and registration papers, is within the scope of police authority pursuant to a traffic violation stop. See Prouse, supra, at 659. If respondent had stayed in his vehicle and acceded to such a request from the officer, the officer would not have needed to intrude into the passenger compartment. Respondent chose, however, to exit the vehicle without removing the papers that covered the VIN; the officer chose to conduct his search without asking respondent to return to the car. We must therefore decide whether the officer acted within the bounds of the Fourth Amendment in conducting the search. We hold that he did.

Keeping the driver of a vehicle in the car during a routine traffic stop is probably the typical police practice. See D. Schultz & D. Hunt, Traffic Investigation and Enforcement 17 (1983). Nonetheless, out of a concern for the safety of the police, the Court has held that officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon. Pennsylvania v. Mimms, 434 U. S. 106, 108-111 (1977) (per curiam). While we impute to respondent no propensity for violence, and while we are conscious of the fact that respondent here voluntarily left the vehicle, the facts of this case may be used to illustrate one of the principal justifications for the discretion given police officers by Pennsylvania v. Mimms: while in the driver’s seat, respondent had a loaded pistol at hand. Mimms allows an officer to guard against that possibility by requiring the driver to exit the car briefly. Clearly, Mimms also allowed the officers here to detain respondent briefly outside the car that he voluntarily exited while they completed their investigation.

The question remains, however, as to whether the officers could not only effect the seizure of respondent necessary to detain him briefly outside the vehicle, but also effect a search for the VIN that may have been necessary only because of that detention. The pistol beneath the seat did not, of course, disappear when respondent closed the car door behind him. To have returned respondent immediately to the automobile would have placed the officers in the same situation that the holding in Mimms allows officers to avoid — permitting an individual being detained to have possible access to a dangerous weapon and the benefit of the partial concealment provided by the car’s exterior. See Pennsylvania v. Mimms, supra, at 110. In light of the danger to the officers’ safety that would have been presented by returning respondent immediately to his car, we think the search to obtain the VIN was not prohibited by the Fourth Amendment.

The Fourth Amendment by its terms prohibits “unreasonable” searches and seizures. We have noted:

“[T]here is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ Camara v. Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, justifiably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (1968) (footnote omitted) (brackets as in Terry).

This test generally means that searches must be conducted pursuant to a warrant backed by probable cause. See United States v. Ventresca, 380 U. S. 102, 105-109 (1965); United States v. Karo, 468 U. S. 705, 714-715 (1984). When a search or seizure has as its immediate object a search for a weapon, however, we have struck the balance to allow the weighty interest in the safety of police officers to justify war-rantless searches based only on a reasonable suspicion of criminal activity. See Terry v. Ohio, supra; Adams v. Williams, 407 U. S. 143 (1972). Such searches are permissible despite their substantial intrusiveness. See Terry v. Ohio, supra, at 24-25 (search was “a severe, though brief, intrusion upon cherished personal security, and . . . must surely [have] b[een] an annoying, frightening, and perhaps humiliating experience”).

When the officer’s safety is less directly served by the detention, something more than objectively justifiable suspicion is necessary to justify the intrusion if the balance is to tip in favor of the legality of the governmental intrusion. In Pennsylvania v. Mimms, supra, at 107, the officers had personally observed the seized individual in the commission of a traffic offense before requesting that he exit his vehicle. In Michigan v. Summers, 452 U. S. 692, 693 (1981), the officers had obtained a warrant to search the house that the person seized was leaving when they came upon him. While the facts in Pennsylvania v. Mimms and Michigan v. Summers differ in some respects from the facts of this case, the similarities are strong enough that the balancing of governmental interests against governmental intrusion undertaken in those cases is also appropriate here. All three of the factors involved in Mimms and Summers are present in this case: the safety of the officers was served by the governmental intrusion; the intrusion was minimal; and the search stemmed from some probable cause focusing suspicion on the individual affected by the search. Indeed, here the officers’ probable cause stemmed from directly observing respondent commit a violation of the law.

When we undertake the necessary balancing of “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion,” United States v. Place, 462 U. S. 696, 703 (1983), the conclusion that the search here was permissible follows. As we recognized in Delaware v. Prouse, 440 U. S., at 658, the governmental interest in highway safety served by obtaining the VIN is of the first order, and the particular method of obtaining the VIN here was justified by a concern for the officers’ safety. The “critical” issue of the intrusiveness of the government’s action, United States v. Place, supra, at 722 (Blackmun, J., concurring in judgment), also here weighs in favor of allowing the search. The search was focused in its objective and no more intrusive than necessary to fulfill that objective. The search was far less intrusive than a formal arrest, which would have been permissible for a traffic offense under New York law, see N. Y. Veh. & Traf. Law § 155 (McKinney Supp. 1986); N. Y. Crim. Proc. Law §140.10(1) (McKinney 1981), and little more intrusive than a demand that respondent — under the eyes of the officers — move the papers himself. The VIN, which was the clear initial objective of the officer, is by law present in one of two locations — either inside the doorjamb, or atop the dashboard and thus ordinarily in plain view of someone outside the automobile. Neither of those locations is subject to a reasonable expectation of privacy. The officer here checked both those locations, and only those two locations. The officer did not root about the interior of respondent’s automobile before proceeding to examine the VIN. He did not reach into any compartments or open any containers. He did not even intrude into the interior at all until after he had checked the doorjamb for the VIN. When he did intrude, the officer simply reached directly for the unprotected space where the VIN was located to move the offending papers. We hold that this search was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations. Any other conclusion would expose police officers to potentially grave risks without significantly reducing the intrusiveness of the ultimate conduct — viewing the VIN — which, as we have said, the officers were entitled, to do as part of an undoubtedly justified traffic stop.

We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard-mounted VIN when the VIN is visible from outside the automobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.

The judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Powell,

with whom The Chief Justice joins, concurring.

I join the Court’s opinion but write to emphasize that, because of the unique and important governmental interests served by inspection of the Vehicle Identification Number (VIN), an officer making a lawful stop of a vehicle has the right and duty to inspect the VIN. Where the VIN is not visible from outside the vehicle or voluntarily disclosed by the driver, the officer may enter the vehicle to the extent necessary to read the VIN.

As the Court explains, the VIN essentially is a serial number that, by identifying certain features of the vehicle to which it is affixed, provides an effective and reliable means for positive identification of the vehicle. The VIN occupies a central position in the elaborate federal and state regulation of automobiles, which frequently depends on such positive identification. Federal regulations now direct manufacturers to place the VIN in a location where it is in the plain view of an observer standing outside the vehicle. 49 CFR §571.115 (S4.6) (1984).

The Court has answered correctly the question presented in this case by applying conventional Fourth Amendment analysis. I believe, however, that an officer’s efforts to observe the VIN need not be subjected to the same scrutiny that courts properly apply when police have intruded into a vehicle to arrest or to search for evidence of crime. When an officer lawfully has stopped a motor vehicle for a traffic infraction, the officer is' entitled to inspect license and registration documents. See Delaware v. Prouse, 440 U. S. 648 (1979); Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam). Unquestionably, the officer also may look through the windshield, observe the VIN, and record it without implicating any Fourth Amendment concerns. Respondent does not contend, nor could it reasonably be contended, that such action violates the Federal Constitution. The question raised on the facts of this case, therefore, is whether the Fourth Amendment was offended by the incremental intrusion resulting from the officer’s efforts to observe this VIN once respondent’s vehicle lawfully was stopped. Cf. Pennsylvania v. Mimms, supra, at 109.

The problem for the officer was that the VIN, located on the dashboard just behind the windshield, was obscured by papers. The sequence of events that transpired is well stated in the Court’s opinion. Suffice it to say here that, when respondent left his vehicle to talk to one of the officers, the other officer sought to determine the VIN of the automobile. This officer did what his duty required. Because he could not see the VIN from outside the car, and because the driver had exited the vehicle, the officer entered the car to the extent necessary to move the papers covering the VIN. It was only then that he observed a handgun protruding from beneath the front seat. The Court of Appeals of New York held that this intrusion was an unlawful search. While agreeing that a search occurred, this Court today sustains the officer’s action on reasoning familiar in cases applying Fourth Amendment principles to automobiles.

In my view, the Fourth Amendment question may be stated simply as whether the officer’s efforts to inspect the VIN were reasonable. There is no finding in this case that the officer’s entry into respondent’s vehicle — opening the door and reaching his hand to the dashboard — was not reasonably necessary to achieve his lawful purpose. If respondent had remained in his seat, as the Court observes, the officer properly should have requested him to remove the papers obstructing the VIN. In the absence of compliance with such a request, an arrest would have been lawful. Cf. People v. Ellis, 62 N. Y. 2d 393, 465 N. E. 2d 826 (1984) (on lawful traffic stop, officers properly arrested driver for failure to produce license or other identification).

In view of the important public purposes served by the VIN system and the minimal expectation of privacy in the VIN, I would hold that where a police officer lawfully stops a motor vehicle, he may inspect the VIN, and remove any obstruction preventing such inspection, where the driver of the vehicle either is unwilling or unable to cooperate.

Justice Brennan,

with whom Justice Marshall and Justice Stevens join, concurring in part and dissenting in part.

I agree that the decision of the New York Court of Appeals does not rest on an adequate and independent state ground, see Michigan v. Long, 463 U. S. 1032, 1043 (1983), and therefore join Part II of the Court’s opinion. I also agree that the police conducted a search of respondent’s vehicle to inspect the Vehicle Identification Number (VIN). Ante, at 114-115. However, I disagree that this search was constitutionally permissible, and to that extent respectfully dissent.

⅛ — I

The facts bear repetition. Officers Meyer and McNamee pulled respondent over after observing him commit minor traffic violations. Respondent emerged from his car, closed the door, and joined Officer Meyer at the rear of the vehicle. Respondent gave Officer Meyer his car registration certificate and proof of insurance, but did not have a driver’s license. Meanwhile, without first examining the documents, and unaware that respondent had no driver’s license, Officer McNamee opened the door of the car to look for the VIN on the doorjamb and, not finding it there, reached inside to remove papers obstructing his view of the VIN on the dashboard. While doing so, McNamee saw a gun handle protruding from underneath the driver’s seat. Respondent was arrested, and eventually convicted, for criminal possession of a weapon. He was issued summonses for his traffic violations.

McNamee conducted the search even though “[i]t is undisputed that the police officers had no reason to suspect that respondent’s car was stolen, that it contained contraband, or that respondent had committed an offense other than the traffic violations.” Ante, at 108.

1 — 1 1 — 1

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer.” California v. Carney, 471 U. S. 386, 390 (1985). While we have found no Fourth Amendment violation in certain warrantless police searches of cars, see, e. g., Carroll v. United States, 267 U. S. 132 (1925), this narrow exception “applies only to searches of vehicles that are supported by probable cause.” United States v. Ross, 456 U. S. 798, 809 (1982).

Officer McNamee’s search of respondent’s car was clearly without probable cause and was therefore patently unconstitutional. The Court’s contrary holding rests not on any reasoning or logic grounded in Fourth Amendment jurisprudence, but rather on a strained and irrelevant analysis. To substitute for the absence of probable cause, the Court struggles to balance “the governmental interest in highway safety served by obtaining the VIN” and a “concern for the officers’ safety” against the “nature and quality” of the intrusion that took place. Ante, at 118. Once again, the Court “takes a long step . . . toward ‘balancing’ into oblivion the protections the Fourth Amendment affords.” Michigan v. Long, supra, at 1065 (Brennan, J., dissenting). The police had no justification whatever, let alone probable cause, to search for the VIN, and therefore no amount of “balancing” can make the search of respondent’s car constitutional.

A

The Court says much about the “important role played by the VIN in the pervasive governmental regulation of the automobile,” and holds that respondent had no “reasonable expectation of privacy in the VIN.” Ante, at 114. This aspect of the Court’s analysis is particularly baffling. Of course, the VIN plays a significant part in federal and state schemes for regulating automobiles, and federal regulations require vehicle manufacturers to install VINs that may be read from outside the passenger compartment. See 49 CFR §571.115 (S4.6) (1984). However, even assuming that respondent had no reasonable expectation of privacy in the VIN, why is this relevant to the question we decide? Officer McNamee did not look for the VIN from outside of respondent’s vehicle, but searched the car without respondent’s consent in order to locate the VIN. By focusing on the object of the search — the VIN — the Court misses the issue we must decide: whether an interior search of the car to discover that object was constitutional. Regardless of whether he had a reasonable expectation of privacy in the VIN, respondent clearly retained a reasonable expectation of privacy with respect to the area searched by the police — the car’s interior. As the court below noted, “[t]he fact that certain information must be kept, or that it may be of a public nature, does not automatically sanction police intrusion into private space in order to obtain it.” 63 N. Y. 2d 491, 495, 472 N. E. 2d 1009, 1011 (1984); cf. id., at 496-497, 472 N. E. 2d, at 1012-1013 (noting that state law only requires drivers to furnish police with vehicle identification).

B

Because vehicles are mobile and subject to pervasive government regulation, an individual’s justifiable expectation of privacy in a vehicle is less than in his home. California v. Carney, supra. This is why the Court has held that war-rantless searches of cars may sometimes not violate the Fourth Amendment, but only if the searches are supported by probable cause. See, e. g., Carroll v. United States, supra; United States v. Ross, supra. For “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.” Delaware v. Prouse, 440 U. S. 648, 662 (1979); see also Almeida-Sanchez v. United States, 413 U. S. 266, 269 (1973) (“[T]he Carroll doctrine does not declare a field day for the police in searching automobiles”). Because the Fourth Amendment constrains the State’s authority to search automobiles under the guise of “regulation,” the fact that the Government uses the VIN as part of its scheme for regulating automobiles is insufficient to justify a search of the passenger compartment to retrieve such information. Rather, as is ordinarily the case with any car search, a VIN search must be supported by probable cause. See Almeida-Sanchez v. United States, supra, at 269 (“Automobile or no automobile, there must be probable cause for the search”). “[T]o eliminate any requirement that an officer be able to explain the reasons for his actions . . . leaves police discretion utterly without limits.” Pennsylvania v. Mimms, 434 U. S. 106, 122 (1977) (Stevens, J., dissenting). In this case, the police clearly lacked probable cause to search for the VIN.

The Court suggests that respondent’s traffic infractions provided the requisite probable cause, this on the ground that there was “probable cause focusing suspicion on the individual affected by the search.” Ante, at 118. This analysis makes a mockery of the Fourth Amendment. There can be no question that respondent’s traffic offenses gave the police probable cause to stop the car and to demand some form of vehicle identification. Delaware v. Prouse, supra, at 663. Too, this sort of routine traffic stop generally gives police an opportunity to inspect the VIN through the car windshield. But Fourth Amendment protections evaporate if this supplies the requisite probable cause to search for a VIN not visible from the exterior of the car. Plainly the search of the interior for the VIN was unnecessary since respondent had supplied his car registration certificate, and there is no suggestion that it was inadequate.

C

The Court supplies not an iota of reasoning to support the holding that respondent’s traffic infractions gave the police probable cause to search for the VIN. The Court is content simply to conclude that “the governmental interest in highway safety served by obtaining the VIN is of the first order.” Ante, at 118. Although I agree that the government has a strong interest in promoting highway safety, see Delaware v. Prouse, supra, at 658, I fail to see just how the VIN search conducted here advanced that interest. Despite the Court’s lengthy exposition on the variety of safety-related purposes served by the VIN, respondent’s car was not searched to further any of the identified interests. If the officers intended to identify what they considered to be an “unsafe” vehicle, that could have been done without searching respondent’s car. Thus, the mere fact that the State utilizes the VIN in conjunction with regulations designed to promote highway safety does not give the police a reason to search for such information every time a motorist violates a traffic law. Absent some reason to search for the VIN, the government’s admittedly strong interest in promoting highway safety cannot validate the intrusion resulting from the search of respondent’s vehicle.

Ill

The Court, relying on Pennsylvania v. Mimms, supra, and Michigan v. Summers, 452 U. S. 692 (1981), next attempts to support its holding on the ground that “[i]n light of the danger to the officers’ safety [that would be] presented by returning respondent immediately to his car [to uncover the VIN,] the search to obtain the VIN was not prohibited by the Fourth Amendment.” Ante, at 116. Neither cited decision supports this argument.

In Summers, police detained the occupant of a home being searched pursuant to a valid warrant. The Court held that this seizure was constitutional because it served several important law enforcement interests, including officer safety, and because the search warrant provided a reasonable basis for the police to determine that the occupant was engaged in criminal activity and should therefore be detained. 452 U. S., at 702-704. By contrast, here there was no reason for the officers to search the car to inspect the VIN. The officers knew only that respondent had committed minor traffic violations, and while this may have given them an opportunity to inspect the VIN, it did not provide a reason to search the interior of the car for it.

In Mimms, police stopped an automobile for a traffic infraction, and ordered the driver to step outside the vehicle. As the driver emerged, the officers noticed a large bulge under his jacket, and after frisking him, discovered a loaded revolver. The Court held that because such actions protected officer safety, the police could legitimately order a driver out of his car when they made a lawful traffic stop. Unlike the situation in Minims, the intrusion in this case— the search of respondent’s vehicle — did not directly serve officer safety. Nevertheless, the Court finds that “[t]o have returned respondent immediately to the automobile [to clear the papers on the dashboard obscuring the VIN] would have placed the officers in the same situation that the holding in Mimms allows officers to avoid.” Ante, at 116. Again, the Court forgets that the police, with no reason to search the interior, had no reason to return respondent to his car. Thus, the State’s interest in protecting officer safety cannot validate the search.

Of course, if the officers had reasonable grounds to suspect that the traffic stop presented a threat to their safety, they would have been authorized to search respondent’s vehicle for weapons. See Michigan v. Long, 463 U. S., at 1051. However, neither officer ever suggested that the situation posed any danger, and the court below specifically found that the facts “reveal no reason for the officer[s]... to act to protect [their] own safety.” 63 N. Y. 2d, at 496, 472 N. E. 2d, at 1012. In the absence of even the slightest suspicion of danger, the search of respondent’s car cannot be justified on grounds of officer safety.

IV

Finally, the Court finds that “[t]he ‘critical’ issue of the intrusiveness of the Government’s action . . . also here weighs in favor of allowing the search.” Ante, at 118. The Court’s effort to minimize the extent of the intrusion, see ante, at 118-119, won’t wash. Officer McNamee clearly searched respondent’s car by opening the door and reaching into the passenger compartment to remove papers from the dashboard. Even if he did not engage in a foil-scale excavation, this search exposed areas of the passenger compartment not visible from outside the vehicle. “The narrow intrusions involved in [Terry v. Ohio, 392 U. S. 1 (1968), and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the dong-prevailing standards’ of probable cause . . . only because these intrusions fell far short of the kind of intrusion associated with an arrest.” Dunaway v. New York, 442 U. S. 200, 212 (1979). That the search conducted here was substantially more intrusive than an ordinary traffic stop starkly exposes the impropriety of the Court’s strained effort to sanction McNamee’s patently illegal search by the balancing approach. In United States v. Place, 462 U. S. 696, 721 (1983), Justice Blackmun too noted his concern over the “emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable.” Cf. 462 U. S., at 718 (Brennan, J., concurring in result); Kolender v. Lawson, 461 U. S. 352, 363 (1983) (Brennan, J., concurring); Florida v. Royer, 460 U. S. 491, 509 (1983) (Brennan, J., concurring in result).

In any event, even if there had been only a limited search here that justified the Court in balancing the extent of the intrusion against the importance of the governmental interests allegedly served, this alone cannot legalize the search of respondent’s car. In situations where the Court has approved of very limited intrusions on less than probable cause, the Court has always required that “the police officer ... be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (1968); see Michigan v. Long, supra, at 1049 (police must have reasonable belief that suspect is dangerous and may gain immediate control of weapons to search areas of passenger compartment where weapons may be placed or hidden); Delaware v. Prouse, 440 U. S., at 663 (police must have reasonable suspicion that motorist is unlicensed, that car is unregistered, or that either the vehicle or an occupant is otherwise subject to seizure, to stop automobile and detain driver); United States v. Brignoni-Ponce, 422 U. S. 873, 881-882 (1975) (police must have reasonable suspicion that vehicle contains illegal aliens in order to stop the car and question occupants about citizenship). In this case, respondent’s traffic infractions did not give the police a reason to search for the VIN, and the police offered no other justification that would reasonably warrant such an intrusion.

In sum, the Court’s decision today is still another of its steps on the road to evisceration of the protections of the Fourth Amendment. The Court’s willingness to sanction a car search that the police had no probable cause to conduct highlights this trend. However, I find the Court’s holding particularly disturbing because none of the factors the Court relies upon — the lack of reasonable expectation of privacy in the VIN, the officers’ observing respondent commit minor traffic violations, the government’s interest both in promoting highway safety and in shielding officers from danger, and the allegedly limited nature of the search that took place— gave the police any reason to search for the VIN. The Court once again disregards the admonition of Justice Jackson:

“[Fourth Amendment rights] are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States, 338 U. S. 160, 180 (1949) (dissenting opinion).

Justice White,

with whom Justice Stevens joins, dissenting.

The police officer involved in this case entered the interior of respondent’s automobile, an area protected by the Fourth Amendment against unreasonable searches and seizures. A car may be searched without a warrant if there is probable cause to do so, but no one suggests that this precondition for a search existed here. The entry was solely to remove an obstruction that prevented the VIN from being seen from outside the car. The issue is whether the governmental interest in obtaining the VIN by entering a protected area is sufficient to outweigh the owner’s privacy interest in the interior of the car. I am unprepared, at least for the reasons the Court gives, to conclude that it is.

Had Class remained in his car and refused an officer’s order (1) to turn over his registration certificate and (2) to remove the article obscuring the VIN, there would have been no more justification for entering the interior of the car and doing what was necessary to read the VIN than there would have been to enter and search for the registration certificate in the glove compartment. It may be that under our cases, Class could have been sanctioned for his refusal in such a case, but we have never held that his refusal would permit a search of the glove compartment. Even if it did, it would be different if there was no refusal at all, but just an entry to find a registration certificate. If that is the case, this one is no different in kind: there was no refusal and nothing but a nonconsensual entry to search without probable cause and without emergent circumstances.

It makes no difference that the law requires the VIN to be visible from outside the car. Otherwise, a requirement that the VIN be carried in a prominent location in the trunk of the car would justify searches of that area whenever there was a stop for a traffic violation. I thus do not join the Court’s opinion, which in effect holds that a search of a car for the VIN is permissible whenever there is a legal stop, whether or not the driver is even asked to consent.

Nevertheless, Class was unlicensed and the police were not constitutionally required merely to give him a citation and let his unlicensed driving continue. Arguably, one of the officers legally could have driven the car away himself and in the process noticed the gun; the car could have been towed and inspected at the station; or Class could have been arrested for driving without a license and the entire car searched. But the Court eschews these possible alternative rationales and rests its judgment on grounds that I do not accept.

      Petitioner invites us to hold that respondent’s status as an unlicensed driver deprived him of any reasonable expectations of privacy in the vehicle, because the officers would have been within their discretion to have prohibited respondent from driving the ear away, to have impounded the ear, and to have later conducted an inventory search thereof. Cf. South Dakota v. Opperman, 428 U. S. 364 (1976) (police may conduct inventory search of car impounded for multiple parking violations); Nix v. Williams, 467 U. S. 431 (1984) (discussing the “inevitable discovery” exception to the exclusionary rule). Petitioner also argues that there can be no Fourth Amendment violation here because the police could have arrested respondent, see N. Y. Veh. & Traf. Law §155 (McKinney Supp. 1986); N. Y. Crim. Proc. Law §140.10(1) (McKinney 1981), and could then have searched the passenger compartment at the time of arrest, cf. New York v. Belton, 453 U. S. 454 (1981), or arrested respondent and searched the car after impounding it pursuant to the arrest, see Cady v. Dombrowski, 413 U. S. 433 (1973). We do not, however, reach those questions here.

       I do not suggest, of course, that the Fourth Amendment is inapplicable in this context. An officer may not use VIN inspection as a pretext for searching a vehicle for contraband or weapons. Nor may the officer undertake an entry more extensive than reasonably necessary to remove any obstruction and read the VIN.

       Indeed, the facts of this case belie any suggestion that the VIN search was needed positively to identify respondent’s vehicle. Officer McNamee did not wait to see respondent’s vehicle registration certificate before he started to search respondent’s car, and did not record the VIN he found in order to compare it with other identifying documents.

       The Court notes that “[t]he ease with which the VIN allows identification of a particular vehicle assists the various levels of government in many ways.” Ante, at 111. As examples, the Court explains that “the VIN improves the efficacy of recall campaigns,” “assists researchers in determining the risks of driving various makes and models of automobiles,” helps to “reduele] the number of those injured in accidents who go uncompensated for lack of insurance,” ensures “that automobile operators are driving safe vehicles,” and “[b]y making automobile theft more difficult. . . safeguards not only property but also life and limb.” Ibid.

       By analogy, had respondent emerged from his car without his vehicle registration certificate or driver’s license, I do not read the Court’s opinion to hold that the police could have searched the passenger compartment in order to locate these documents, even though they also play important roles in the State’s regulation of automobiles.

       “‘There are important reasons why balancing inquiries should not be conducted except in the most limited circumstances.” United States v. Place, 462 U. S., at 718 (Brennan, J., concurring in result). “[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.” Dunaway v. New York, 442 U. S. 200, 213 (1979). As a general rule, “the Framers of the [Fourth] Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause.” United States v. Place, supra, at 722 (Blackmun, J., concurring in judgment).

       Justice Powell, in a concurring opinion joined by The Chief Justice, would find that “[w]here the VIN is not visible from outside the vehicle or voluntarily disclosed by the driver, the officer may enter the vehicle to the extent necessary to read the VIN.” Ante, at 120. Even were I to agree with this standard, in this case Officer McNamee searched respondent’s car without ever asking him voluntarily to disclose the VIN’s location.


author: Per Curiam.

text:
    UNITED STATES v. KOECHER
    No. 84-1922.
    Argued January 15, 1986
    Decided February 25, 1986

      Christopher J. Wright argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Andrew J. Pincus.

      Gerard E. Lynch argued the cause for respondent. With him on the brief were George Kannar and Charles S. Sims.

   Per Curiam.

The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the cause as moot.