source: Caselaw Access Project

author: Justice Stevens Justice Brennan,

license: Public Domain

text:
    HORTON v. CALIFORNIA
    No. 88-7164.
    Argued February 21, 1990
    Decided June 4, 1990

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 142.

      Juliana Drous, by appointment of the Court, 493 U. S. 952, argued the cause and filed briefs for petitioner.

      Martin S. Kaye, Supervising Deputy Attorney General of California, argued the cause for respondent. With him on the brief were John K. Van de Kamp, Attorney General,
      Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, and Clifford K. Thompson, Jr., Deputy Attorney General.

      Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Brian J. Martin; and for Americans for Effective Law Enforcement, Inc., et al. by Gregory U. Evans, Daniel B. Hales, George D. Webster, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak.

   Justice Stevens

delivered the opinion of the Court.

In this case we revisit an issue that was considered, but not conclusively resolved, in Coolidge v. New Hampshire, 403 U. S. 443 (1971): Whether the warrantless seizure of evidence of crime in plain view is prohibited by the Fourth Amendment if the discovery of the evidence was not inadvertent. We conclude that even though inadvertence is a characteristic of most legitimate “plain-view” seizures, it is not a necessary condition.

I

Petitioner was convicted of the armed robbery of Erwin Wallaker, the treasurer of the San Jose Coin Club. When Wallaker returned to his home after the Club’s annual show, he entered his garage and was accosted by two masked men, one armed with a machine gun and the other with an electrical shocking device, sometimes referred to as a “stun gun.” The two men shocked Wallaker, bound and handcuffed him, and robbed him of jewelry and cash. During the encounter sufficient conversation took place to enable Wallaker subsequently to identify petitioner’s distinctive voice. His identification was partially corroborated by a witness who saw the robbers leaving the scene and by evidence that petitioner had attended the coin show.

Sergeant LaRault, an experienced police officer, investigated the crime and determined that there was probable cause to search petitioner’s home for the proceeds of the robbery and for the weapons used by the robbers. His affidavit for a search warrant referred to police reports that described the weapons as well as the proceeds, but the warrant issued by the Magistrate only authorized a search for the proceeds, including three specifically described rings.

Pursuant to the warrant, LaRault searched petitioner’s residence, but he did not find the stolen property. During the course of the search, however, he discovered the weapons in plain view and seized them. Specifically, he seized an Uzi machine gun, a .38-caliber revolver, two stun guns, a handcuff key, a San Jose Coin Club advertising brochure, and a few items of clothing identified by the victim. LaRault testified that while he was searching for the rings, he also was interested in finding other evidence connecting petitioner to the robbery. Thus, the seized evidence was not discovered “inadvertently.”

The trial court refused to suppress the evidence found in petitioner’s home and, after a jury trial, petitioner was found guilty and sentenced to prison. The California Court of Appeal affirmed. App. 43. It rejected petitioner’s argument that our decision in Coolidge required suppression of the seized evidence that had not been listed in the warrant because its discovery was not inadvertent. App. 52-53. The court relied on the California Supreme Court’s decision in North v. Superior Court, 8 Cal. 3d 301, 502 P. 2d 1305 (1972). In that case the court noted that the discussion of the inadvertence limitation on the “plain-view” doctrine in Justice Stewart’s opinion in Coolidge had been joined by only three other Members of this Court and therefore was not binding on it. The California Supreme Court denied petitioner’s request for review. App. 78.

Because the California courts’ interpretation of the “plain-view” doctrine conflicts with the view of other courts, and because the unresolved issue is important, we granted certiorari, 493 U. S. 889 (1989).

II

The Fourth Amendment provides:

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

The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. United States v. Jacobsen, 466 U. S. 109, 113 (1984). The “plain-view” doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Arizona v. Hicks, 480 U. S. 321, 325 (1987); Illinois v. Andreas, 463 U. S. 765, 771 (1983). A seizure of the article, however, would obviously invade the owner’s possessory interest. Maryland v. Macon, 472 U. S. 463, 469 (1985); Jacobsen, 466 U. S., at 113. If “plain view” justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches.

The criteria that generally guide “plain-view” seizures were set forth in Coolidge v. New Hampshire, 403 U. S. 443 (1971). The Court held that the police, in seizing two automobiles parked in plain view on the defendant’s driveway in the course of arresting the defendant, violated the Fourth Amendment. Accordingly, particles of gunpowder that had been subsequently found in vacuum sweepings from one of the cars could not be introduced in evidence against the defendant. The State endeavored to justify the seizure of the automobiles, and their subsequent search at the police station, on four different grounds, including the “plain-view” doctrine. The scope of that doctrine as it had developed in earlier cases was fairly summarized in these three paragraphs from Justice Stewart’s opinion:

“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain-view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
“An example of the applicability of the ‘plain-view’ doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Cf. Go-Bart Importing Co. v. United States, 282 U. S. 344, 358 [(1931)]; United States v. Lefkowitz, 285 U. S. 452, 465 [(1932)]; Steele v. United States, 267 U. S. 498 [(1925)]; Stanley v. Georgia, 394 U. S. 557, 571 [(1969)] (Stewart, J., concurring in result). Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in ‘hot pursuit’ of a fleeing suspect. Warden v. Hayden, [387 U. S. 294 (1967)]; cf. Hester v. United States, 265 U. S. 57 [(1924)]. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Chimel v. California, 395 U. S. [752,] 762-763 [(1969)]. Finally, the ‘plain-view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U. S. 234 [(1968)]; Frazier v. Cupp, 394 U. S. 731 [(1969)]; Ker v. California, 374 U. S. [23,] 43 [(1963)]. Cf. Lewis v. United States, 385 U. S. 206 [(1966)].
“What the ‘plain-view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification—whether it be a warrant for- another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain-view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Id., at 465-466 (footnote omitted).

Justice Stewart then described the two limitations on the doctrine that he found implicit in its rationale: First, that “plain view alone is never enough to justify the warrantless seizure of evidence,” id., at 468; and second, that “the discovery of evidence in plain view must be inadvertent.” Id., at 469.

Justice Stewart’s analysis of the “plain-view” doctrine did not command a majority, and a plurality of the Court has since made clear that the discussion is “not a binding precedent.” Texas v. Brown, 460 U. S. 730, 737 (1983) (opinion of Rehnquist, J.). Justice Harlan, who concurred in the Court’s judgment and in its response to the dissenting opinions, 403 U. S., at 473-484, 490-493, did not join the plurality’s discussion of the “plain-view” doctrine. See id., at 464-473. The decision nonetheless is a binding precedent. Before discussing the second limitation, which is implicated in this case, it is therefore necessary to explain why the first adequately supports the Court’s judgment.

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be “immediately apparent.” Id., at 466; see also Arizona v. Hicks, 480 U. S., at 326-327. Thus, in Coolidge, the cars were obviously in plain view, but their probative value remained uncertain until after the interiors were swept and examined microscopically. Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself. As the United States has suggested, Justice Harlan’s vote in Coolidge may have rested on the fact that the seizure of the cars was accomplished by means of a warrantless trespass on the defendant’s property. In all events, we are satisfied that the absence of inadvertence was not essential to the Court’s rejection of the State’s “plain-view” argument in Coolidge.

III

Justice Stewart concluded that the inadvertence requirement was necessary to avoid a violation of the express constitutional requirement that a valid warrant must particularly describe the things to be seized. He explained:

“The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a ‘general’ one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’
“If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of ‘Warrants . . . particularly describing . . . [the] things to be seized.’” 403 U. S., at 469-471.

We find two flaws in this reasoning. First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. If the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant. Specification of the additional item could only permit the officer to expand the scope of the search. On the other hand, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first. The hypothetical case put by Justice White in his concurring and dissenting opinion in Coolidge is instructive:

“Let us suppose officers secure a warrant to search a house for a rifle. While staying well within the range of a rifle search, they discover two photographs of the murder victim, both in plain sight in the bedroom. Assume also that the discovery of the one photograph was inadvertent but finding the other was anticipated. The Court would permit the seizure of only one of the photographs. But in terms of the ‘minor’ peril to Fourth Amendment values there is surely no difference between these two photographs: the interference with possession is the same in each case and the officers’ appraisal of the photograph they expected to see is no less reliable than their judgment about the other. And in both situations the actual inconvenience and danger to evidence remain identical if the officers must depart and secure a warrant.” Id., at 516.

Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirements that no warrant issue unless it “particularly describ[es] the place to be searched and the persons or things to be seized,” see Maryland v. Garrison, 480 U. S. 79, 84 (1987); Steele v. United States No. 1, 267 U. S. 498, 503 (1925), and that a warrantless search be circumscribed by the exigencies which justify its initiation. See, e. g., Maryland v. Buie, 494 U. S. 325, 332-334 (1990); Mincey v. Arizona, 437 U. S. 385, 393 (1978). Scrupulous adherence to these requirements serves the interests in limiting the area and duration of the search that the inadvertence requirement inadequately protects. Once those commands have been satisfied and the officer has a lawful right of access, however, no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent. If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more. Thus, in the case of a search incident to a lawful arrest, “[i]f the police stray outside the scope of an authorized Chimel search they are already in violation of the Fourth Amendment, and evidence so seized will be excluded; adding a second reason for excluding evidence hardly seems worth the candle.” Coolidge, 403 U. S., at 517 (White, J., concurring and dissenting). Similarly, the object of a warrantless search of an automobile also defines its scope:

“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U. S. 798, 824 (1982).

In this case, the scope of the search was not enlarged in the slightest by the omission of any reference to the weapons in the warrant. Indeed, if the three rings and other items named in the warrant had been found at the outset—or if petitioner had them in his possession and had responded to the warrant by producing them immediately—no search for weapons could have taken place. Again, Justice White’s concurring and dissenting opinion in Coolidge is instructive:

“Police with a warrant for a rifle may search only places where rifles might be and must terminate the search once the rifle is found; the inadvertence rule will in no way reduce the number of places into which they may lawfully look.” 403 U. S., at 517.

As we have already suggested, by hypothesis the seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it. The prohibition against general searches and general warrants serves primarily as a protection against unjustified intrusions on privacy. But reliance on privacy concerns that support that prohibition is misplaced when the inquiry concerns the scope of an exception that merely authorizes an officer with a lawful right of access to an item to seize it without a warrant.

In this case the items seized from petitioner’s home were discovered during a lawful search authorized by a valid warrant. When they were discovered, it was immediately apparent to the officer that they constituted incriminating evidence. He had probable cause, not only to obtain a warrant to search for the stolen property, but also to believe that the weapons and handguns had been used in the crime he was investigating. The search was authorized by the warrant; the seizure was authorized by the “plain-view” doctrine. The judgment is affirmed.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins, dissenting.

I remain convinced that Justice Stewart correctly articulated the plain-view doctrine in Coolidge v. New Hampshire, 403 U. S. 443 (1971). The Fourth Amendment permits law enforcement officers to seize items for which they do not have a warrant when those items are found in plain view and (1) the officers are lawfully in a position to observe the items, (2) the discovery of the items is “inadvertent,” and (3) it is immediately apparent to the officers that the items are evidence of a crime, contraband, or otherwise subject to seizure. In eschewing the inadvertent discovery requirement, the majority ignores the Fourth Amendment’s express command that warrants particularly describe not only the places to be searched, but also the things to be seized. I respectfully dissent from this rewriting of the Fourth Amendment.

I

The Fourth Amendment states:

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

The Amendment protects two distinct interests. The prohibition against unreasonable searches and the requirement that a warrant “particularly describ[e] the place to be searched” protect an interest in privacy. The prohibition against unreasonable seizures and the requirement that a warrant “particularly describ[e] . . . the . . . things to be seized” protect a possessory interest in property. See ante, at 133; Texas v. Brown, 460 U. S. 730, 747 (1983) (Stevens, J., concurring in judgment). The Fourth Amendment, by its terms, declares the privacy and possessory interests to be equally important. As this Court recently stated: “Although the interest protected by the Fourth Amendment injunction against unreasonable searches, is quite different from that protected by its injunction against unreasonable seizures, neither the one nor the other is of inferior worth or necessarily requires only lesser protection.” Arizona v. Hicks, 480 U. S. 321, 328 (1987) (citation omitted).

The Amendment protects these equally important interests in precisely the same manner: by requiring a neutral and detached magistrate to evaluate, before the search or seizure, the government’s showing of probable cause and its particular description of the place to be searched and the items to be seized. Accordingly, just as a warrantless search is per se unreasonable absent exigent circumstances, so too a seizure of personal property is “per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” United States v. Place, 462 U. S. 696, 701 (1983) (footnote omitted) (citing Marron v. United States, 275 U. S. 192, 196 (1927)). “Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.” United States v. United States District Court, Eastern District of Michigan, 407 U. S. 297, 318 (1972). A decision to invade a possessory interest in property is too important to be left to the discretion of zealous officers “engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948). “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron, supra, at 196.

The plain-view doctrine is an exception to the general rule that a seizure of personal property must be authorized by a warrant. As Justice Stewart explained in Coolidge, 403 U. S., at 470, we accept a warrantless seizure when an officer is lawfully in a location and inadvertently sees evidence of a crime because of “the inconvenience of procuring a warrant” to seize this newly discovered piece of evidence. But “where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it,” the argument that procuring a warrant would be “inconvenient” loses much, if not all, of its force. Ibid. Barring an exigency, there is no reason why the police officers could not have obtained a warrant to seize this evidence before entering the premises. The rationale behind the inadvertent discovery requirement is simply that we will not excuse officers from the general requirement of a warrant to seize if the officers know the location of evidence, have probable cause to seize it, intend to seize it, and yet do not bother to obtain a warrant particularly describing that evidence. To do so would violate “the express constitutional requirement of ‘Warrants . . . particularly describing . . . [the] things to be seized,”’ and would “fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.” Id., at 471.

Although joined by only three other Members of the Court, Justice Stewart’s discussion of the inadvertent discovery requirement has become widely accepted. See Texas v. Brown, supra, at 746 (Powell, J., concurring in judgment) (“Whatever my view might have been when Coolidge was decided, I see no reason at this late date to imply criticism of its articulation of this exception. It has been accepted generally for over a decade”). Forty-six States and the District of Columbia and 12 United States Courts of Appeals now require plain-view seizures to be inadvertent. There has been no outcry from law enforcement officials that the inadvertent discovery requirement unduly burdens their efforts. Given that the requirement is inescapably rooted in the plain language of the Fourth Amendment, I cannot fathom the Court’s enthusiasm for discarding this element of the plain-view doctrine.

The Court posits two “flaws” in Justice Stewart’s reasoning that it believes demonstrate the inappropriateness of the inadvertent discovery requirement. But these flaws are illusory. First, the majority explains that it can see no reason why an officer who “has knowledge approaching certainty” that an item will be found in a particular location “would deliberately omit a particular description of the item to be seized from the application for a search warrant.” Ante, at 138. But to the individual whose possessory interest has been invaded, it matters not why the police officer decided to omit a particular item from his application for a search warrant. When an officer with probable cause to seize an item fails to mention that item in his application for a search warrant—for whatever reason—and then seizes the item anyway, his conduct is per se unreasonable. Suppression of the evidence so seized will encourage officers to be more precise and complete in future warrant applications.

Furthermore, there are a number of instances in which a law enforcement officer might deliberately choose to omit certain items from a warrant application even though he has probable cause to seize them, knows they are on the premises, and intends to seize them when they are discovered in plain view. For example, the warrant application process can often be time consuming, especially when the police attempt to seize a large number of items. An officer interested in conducting a search as soon as possible might decide to save time by listing only one or two hard-to-find items, such as the stolen rings in this case, confident that he will find in plain view all of the other evidence he is looking for before he discovers the listed items. Because rings could be located almost anywhere inside or outside a house, it is unlikely that a warrant to search for and seize the rings would restrict the scope of the search. An officer might rationally find the risk of immediately discovering the items listed in the warrant—thereby forcing him to conclude the search immediately-outweighed by the time saved in the application process.

The majority also contends that, once an officer is lawfully in a house and the scope of his search is adequately circumscribed by a warrant, “no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent.” Ante, at 140. Put another way, “‘the inadvertence rule will in no way reduce the number of places into which [law enforcement officers] may lawfully look.’” Ante, at 141 (quoting Coolidge, 403 U. S., at 517 (White, J., concurring and dissenting)). The majority is correct, but it has asked the wrong question. It is true that the inadvertent discovery requirement furthers no privacy interests. The requirement in no way reduces the scope of a search or the number of places into which officers may look. But it does protect possessory interests. Cf. Illinois v. Andreas, 463 U. S. 765, 771 (1983) (“The plain-view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy”) (emphasis added). The inadvertent discovery requirement is essential if we are to take seriously the Fourth Amendment’s protection of possessory interests as well as privacy interests. See supra, at 143. The Court today eliminates a rule designed to further possessory interests on the ground that it fails to further privacy interests. I cannot countenance such constitutional legerdemain.

II

Fortunately, this decision should have only a limited impact, for the Court is not confronted today with what lower courts have described as a “pretextual” search. See, e. g., State v. Lair, 95 Wash. 2d 706, 717-718, 630 P. 2d 427, 434 (1981) (en banc) (holding pretextual searches invalid). For example, if an officer enters a house pursuant to a warrant to search for evidence of one crime when he is really interested only in seizing evidence relating to another crime, for which he does not have a warrant, his search is “pretextual” and the fruits of that search should be suppressed. See, e. g., State v. Kelsey, 592 S. W. 2d 509 (Mo. App. 1979) (evidence suppressed because officers, who had ample opportunity to obtain warrant relating to murder investigation, entered the premises instead pursuant to a warrant relating to a drug investigation, and searched only the hiding place of the murder weapon, rather than conducting a “top to bottom” search for drugs). Similarly, an officer might use an exception to the generally applicable warrant requirement, such as “hot pursuit,” as a pretext to enter a home to seize items he knows he will find in plain view. Such conduct would be a deliberate attempt to circumvent the constitutional requirement of a warrant “particularly describing the place to be searched, and the persons or things to be seized,” and cannot be condoned.

The discovery of evidence in pretextual searches is not “inadvertent” and should be suppressed for that reason. But even state courts that have rejected the inadvertent discovery requirement have held that the Fourth Amendment prohibits pretextual searches. See State v. Bussard, 114 Idaho 781, 788, n. 2, 760 P. 2d 1197, 1204, n. 2 (1988); State v. Kelly, 718 P. 2d 385, 389, n. 1 (Utah 1986). The Court’s opinion-today does not address pretextual searches, but I have no doubt that such searches violate the Fourth Amendment.

III

The Fourth Amendment demands that an individual’s possessory interest in property be protected from unreasonable governmental seizures, not just by requiring a showing of probable cause, but also by requiring a neutral and detached magistrate to authorize the seizure in advance. The Court today ignores the explicit language of the Fourth Amendment, which protects possessory interests in the same manner as it protects privacy interests, in order to eliminate a generally accepted element of the plain-view doctrine that has caused no apparent difficulties for law enforcement officers. I am confident, however, that when confronted with more egregious police conduct than that found in this case, ante, at 130-131, such as pretextual searches, the Court’s interpretation of the Constitution will be less parsimonious than it is today. I respectfully dissent.

APPENDIX A

STATES THAT HAVE ADOPTED THE INADVERTENT DISCOVERY REQUIREMENT

Ala. Taylor v. State, 399 So. 2d 881, 892 (Ala. 1981)

Alaska Deal v. State, 626 P. 2d 1073, 1079 (Alaska 1980)

Ariz. State v. Ault, 150 Ariz. 459, 464, 724 P. 2d 545, 550 (1986)

Ark. Johnson v. State, 291 Ark. 260, 263, 724 S. W. 2d 160, 162 (1987)

Colo. People v. Cummings, 706 P. 2d 766, 771 (Colo. 1985)

Conn. State v. Hamilton, 214 Conn. 692, 701, 573 A. 2d 1197, 1201 (1990)

D. C. Gant v. United States, 518 A. 2d 103, 107 (DC App. 1986)

Fla. Hurt v. State, 388 So. 2d 281, 282-283 (Fla. App. 1980), review denied, 399 So. 2d 1146 (Fla. 1981)

Ga. Mooney v. State, 243 Ga. 373, 383-384, 254 S. E. 2d 337, 346, cert. denied, 444 U. S. 886 (1979)

Haw. State v. Barnett, 68 Haw. 32, 35, 703 P. 2d 680, 683 (1985)

Ill. People v. Madison, 121 Ill. 2d 195, 208, 520 N. E. 2d 374, 380-381, cert. denied, 488 U. S. 907 (1988)

Ind. Clark v. State, 498 N. E. 2d 918, 921 (Ind. 1986)

Iowa State v. Emerson, 375 N. W. 2d 256, 259 (Iowa 1985)

Kan. State v. Doile, 244 Kan. 493, 497, 769 P. 2d 666, 669 (1989)

Ky. Patrick v. Commonwealth, 535 S. W. 2d 88, 89 (Ky. 1976)

La. State v. Stott, 395 So. 2d 714, 716 (La. 1981)

Me. State v. Cloutier, 544 A. 2d 1277, 1281, n. 4 (Me. 1988)

Md. Wiggins v. State, 315 Md. 232, 251-252, 554 A. 2d 356, 365 (1989)

Mass. Commonwealth v. Cefalo, 381 Mass. 319, 330-331, 409 N. E. 2d 719, 727 (1980)

Mich. People v. Dugan, 102 Mich. App. 497, 503-505, 302 N. W. 2d 209, 211-212 (1980), cert. denied, 455 U. S. 927 (1982)

Minn. State v. Buschkopf, 373 N. W. 2d 756, 768 (Minn. 1985)

Miss. Smith v. State, 419 So. 2d 563, 571 (Miss. 1982), cert. denied, 460 U. S. 1047 (1983)

Mo. State v. Clark, 592 S. W. 2d 709, 713 (Mo. 1979), cert. denied, 449 U. S. 847 (1980)

Mont. State v. Hembd, 235 Mont. 361, 368-369, 767 P. 2d 864, 869 (1989)

Neb. State v. Hansen, 221 Neb. 103, 108-109, 375 N. W. 2d 605, 609 (1985)

Nev. Johnson v. State, 97 Nev. 621, 624, 637 P. 2d 1209, 1211 (1981)

N. H. State v. Cote, 126 N. H. 514, 525, 526, 493 A. 2d 1170, 1177-1178 (1985)

N. J. State v. Bruzzese, 94 N. J. 210, 237-238, 463 A. 2d 320, 334-335 (1983), cert. denied, 465 U. S. 1030 (1984)

N. M. State v. Luna, 93 N. M. 773, 779, 606 P. 2d 183, 188 (1980)

N. Y. People v. Jackson, 41 N. Y. 2d 146, 150-151, 359 N. E. 2d 677, 681 (1976)

N. C. State v. White, 322 N. C. 770, 773, 370 S. E. 2d 390, 392, cert. denied, 488 U. S. 958 (1988)

N. D. State v. Riedinger, 374 N. W. 2d 866, 874 (N. D. 1985)

Ohio State v. Benner, 40 Ohio St. 3d 301, 308, 533 N. E. 2d 701, 709-710 (1988), cert. denied, 494 U. S. 1090 (1990)

Okla. Farmer v. State, 759 P. 2d 1031, 1033 (Okla. Crim. App. 1988)

Ore. State v. Handran, 97 Ore. App. 546, 550-551, 777 P. 2d 981, 983, review denied, 308 Ore. 405, 781 P. 2d 855 (1989)

Pa. Commonwealth v. Davidson, 389 Pa. Super. 166, 175, 566 A. 2d 897, 901 (1989)

R. I. State v. Robalewski, 418 A. 2d 817, 824 (R. I. 1980)

S. C. State v. Culbreath, 300 S. C. 232, 237, 387 S. E. 2d 255, 257 (1990)

S. D. State v. Albright, 418 N. W. 2d 292, 295 (S. D. 1988)

Tenn. State v. Byerley, 635 S. W. 2d 511, 513 (Tenn. 1982)

Tex. Stoker v. State, 788 S. W. 2d 1, 9 (Tex. Crim. App. 1989) (en banc)

Vt. State v. Dorn, 145 Vt. 606, 620-621, 496 A. 2d 451, 459-460 (1985)

Va. Holloman v. Commonwealth, 221 Va. 947, 949, 275 S. E. 2d 620, 621-622 (1981)

Wash. State v. Bell, 108 Wash. 2d 193, 196, 737 P. 2d 254, 257 (1987)

W. Va. State v. Moore, 165 W. Va. 837, 852-853, 272 S. E. 2d 804, 813-814 (1980)

Wis. State v. Washington, 134 Wis. 2d 108, 119-121, 396 N. W. 2d 156, 161 (1986)

Wyo. Jessee v. State, 640 P. 2d 56, 63 (Wyo. 1982)

APPENDIX B

UNITED STATES COURTS OF APPEALS THAT HAVE ADOPTED THE INADVERTENT DISCOVERY REQUIREMENT

CA1: United States v. Caggiano, 899 F. 2d 99, 103 (1990)

CA2: United States v. Barrios-Moriera, 872 F. 2d 12, 16, cert. denied, 493 U. S. 953 (1989)

CA3: United States v. Meyer, 827 F. 2d 943, 945 (1987)

CA4: Tarantino v. Baker, 825 F. 2d 772, 777, n. 3 (1987)

CA5: Crowder v. Sinyard, 884 F. 2d 804, 826, n. 30 (1989), cert. pending, No. 89-1326

CA6: United States v. Poulos, 895 F. 2d 1113, 1121 (1990)

CA7: United States v. Perry, 815 F. 2d 1100, 1105 (1987)

CA8: United States v. Peterson, 867 F. 2d 1110, 1113 (1989)

CA9: United States v. Holzman, 871 F. 2d 1496, 1512 (1989)

CA10: Wolfenbarger v. Williams, 826 F. 2d 930, 935 (1987)

CA11: United States v. Bent-Santana, 774 F. 2d 1545, 1551 (1985)

CADC: In re Search Warrant Dated July 4, 1977, for Premises at 2125 S Street, Northwest, Washington, D. C., 215 U. S. App. D. C. 74, 102, 667 F. 2d 117, 145 (1981), cert. denied, 456 U. S. 926 (1982)

       Although the officer viewed other handguns and rifles, he did not seize them because there was no probable cause to believe they were associated with criminal activity. App. 30; see Arizona v. Hicks, 480 U. S. 321, 327 (1987).

       “In Coolidge, the police arrested a murder suspect in his house and thereupon seized his automobile and searched it later at the police station, finding physical evidence that the victim had been inside the vehicle. The record disclosed that the police had known for some time of the probable role of the car in the crime, and there were no ‘exigent circumstances’ to justify a warrantless search. Accordingly, the plurality opinion of Justice Stewart concluded that the seizure could not be justified on the theory that the vehicle was itself the ‘instrumentality’ of the crime and was discovered ‘in plain view’ of the officers. Justice Stewart was of the opinion that the ‘plain-view’ doctrine is applicable only to the inadvertent discovery of incriminating evidence.
      “If the plurality opinion in Coolidge were entitled to binding effect as precedent, we would have difficulty distinguishing its holding from the instant case, for the discovery of petitioner’s car was no more ‘inadvertent’ than in Coolidge. However, that portion of Justice Stewart’s plurality opinion which proposed the adoption of new restrictions to the ‘plain-view’ rule was signed by only four members of the court (Stewart, J., Douglas, J., Brennan, J., and Marshall, J.). Although concurring in the judgment, Justice Harlan declined to join in that portion of the opinion, and the four remaining justices expressly disagreed with Justice Stewart on this point.” North v. Superior Court, 8 Cal. 3d, at 307-308, 502 P. 2d, at 1308 (citations omitted).

       See, e. g., Wolfenbarger v. Williams, 826 F. 2d 930 (CA10 1987); United States v. $10,000 in United States Currency, 780 F. 2d 213 (CA2 1986); United States v. Roberts, 644 F. 2d 683 (CA8), cert. denied, 449 U. S. 821 (1980); United States v. Antill, 615 F. 2d 648 (CA5 1980); Terry v. State, 271 Ark. 715, 610 S. W. 2d 272 (App. 1981); State v. Johnson, 17 Wash. App. 153, 561 P. 2d 701 (1977); Commonwealth v. Cefalo, 381 Mass. 319, 409 N. E. 2d 719 (1980); State v. Sanders, 431 So. 2d 1034 (Fla. App. 1983); State v. Galloway, 232 Kan. 87, 652 P. 2d 673 (1982); Clark v. State, 498 N. E. 2d 918 (Ind. 1986); State v. Eiseman, 461 A. 2d 369, 380 (R. I. 1983); State v. McColgan, 631 S. W. 2d 151 (Tenn. Crim. App. 1981); Tucker v. State, 620 P. 2d 1314 (Okla. Crim. App. 1980); State v. Dingle, 279 S. C. 278, 306 S. E. 2d 223 (1983). See also the cases cited in the Appendices to Justice Brennan’s dissenting opinion, post, at 149-153. At least two other state courts have agreed with the California Supreme Court. See State v. Pontier, 95 Idaho 707, 712, 518 P. 2d 969, 974 (1974); State v. Romero, 660 P. 2d 715 (Utah 1983).

       “We reaffirm the basic rule of Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous Court in Mincey v. Arizona, 437 U. S. 385, 390 [(1978)]:
      “‘The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 [(1967)] (footnotes omitted).’” United States v. Ross, 456 U. S. 798, 824-825 (1982).

       “It is important to distinguish ‘plain view,’ as used in Coolidge to justify seizure of an object, from an officer’s mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search, see infra, at 740; Katz v. United States, 389 U. S. 347 (1967), the former generally does implicate the Amendment’s limitations upon seizures of personal property.” Texas v. Brown, 460 U. S. 730, 738, n. 4 (1983) (opinion of Rehnquist, J.).

       The State primarily contended that the seizures were authorized by a warrant issued by the attorney general, but the Court held the warrant invalid because it had not been issued by “a neutral and detached magistrate.” 403 U. S., at 449-453. In addition, the State relied on three exceptions from the warrant requirement: (1) search incident to arrest; (2) the automobile exception; and (3) the “plain-view” doctrine. Id., at 453-473.

       “This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U. S. 1 [(1932)]; Johnson v. United States, 333 U. S. 10 [(1948)]; McDonald v. United States, 335 U. S. 451 [(1948)]; Jones v. United States, 357 U. S. 493, 497-498 [(1958)]; Chapman v. United States, 365 U. S. 610 [(1961)]; Trupiano v. United States, 334 U. S. 699 [(1948)].” Coolidge, 403 U. S., at 468.
      We have since applied the same rule to the arrest of a person in his home. See Minnesota v. Olson, 495 U. S. 91 (1990); Payton v. New York, 445 U. S. 573 (1980).

       See Brief for United States as Amicus Curiae 7, n. 4.

       “If the police have probable cause to search for a photograph as well as a rifle and they proceed to seek a warrant, they could have no possible motive for deliberately including the rifle but omitting the photograph. Quite the contrary is true. Only oversight or careless mistake would explain the omission in the warrant application if the police were convinced they had probable cause to search for the photograph.” Coolidge, 403 U. S., at 517 (White, J., concurring and dissenting).

       “The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one ‘particularly describing the place to be searched and the persons or things to be seized.’ The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U. S., at 84.

       Even if the item is a container, its seizure does not compromise the interest in preserving the privacy of its contents because it may only be opened pursuant to either a search warrant, see Smith v. Ohio, 494 U. S. 541 (1990); United States v. Place, 462 U. S. 696, 701 (1983); Arkansas v. Sanders, 442 U. S. 753 (1979); United States v. Chadwick, 433 U. S. 1 (1977); United States v. Van Leeuwen, 397 U. S. 249 (1970); Ex parte Jackson, 96 U. S. 727, 733 (1878), or one of the well-delineated exceptions to the warrant requirement. See Colorado v. Bertine, 479 U. S. 367 (1987); United States v. Ross, 456 U. S. 798 (1982).

       As the majority recognizes, the requirement that warrants particularly describe the things to be seized also protects privacy interests by preventing general searches. Ante, at 139-141. The scope of a search is limited to those places in which there is probable cause to believe an item particularly described in the warrant might be found. A police officer cannot search for a lawnmower in a bedroom, or for an undocumented alien in a suitcase. Ante, at 140-141 (citing United States v. Ross, 456 U. S. 798, 824 (1982)). Similarly, once all of the items particularly described in a warrant have been found, the search must cease and no further invasion of privacy is permitted. Ante, at 141.

       See Appendix A, infra, at 149-152. Only three States—California, Idaho, and Utah—have rejected the inadvertent discovery requirement. See People v. Bittaker, 48 Cal. 3d 1046, 1076, 774 P. 2d 659, 673-674 (1989), cert. pending, No. 89-6223; State v. Pontier, 95 Idaho 707, 712, 518 P. 2d 969, 974 (1974); State v. Kelly, 718 P. 2d 385, 389, n. 1 (Utah 1986). The status of the inadvertent discovery requirement in Delaware is unclear. See, e. g., Wicks v. State, 552 A. 2d 462, 465 (Del. Super. 1988).

       See Appendix B, infra, at 152-153.

       The Court also does not dispute the unconstitutionality of a search that goes “so far astray of a search for the items mentioned in the warrant that it [becomes] a general exploratory search for any evidence of wrongdoing that might be found.” United States v. Tranquillo, 330 F. Supp. 871, 876 (MD Fla. 1971). Indeed, the Court reiterates that “converting specific warrants into general warrants” is unconstitutional and emphasizes the need for scrupulous adherence to the requirements that warrants particularly describe the place to be searched and the things to be seized and that a warrantless search “be circumscribed by the exigencies which justify its initiation.” Ante, at 139-140.


author: Justice Stevens

text:
    COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, et al. v. JEAN et al.
    No. 89-601.
    Argued April 23, 1990
    Decided June 4, 1990

      Stevens, J., delivered the opinion for a unanimous Court.

      Paul J. Larkin, Jr., argued the cause for petitioners. On the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Merrill, Harriet S. Shapiro, William G. Kanter, and Michael J. Singer.

      Ira J. Kurzban argued the cause for respondents. With him on the brief were Bruce J. Winick, Irwin P. Stotzky, Robert E. Juceam, Terrence A. Corrigan, and Sandra M. Lipsman.

      Briefs of amici curiae urging affirmance were filed for the American Immigration Lawyers Association by Lawrence H. Rudnick; for the National Immigration Project et al. by Robert L. King and Niels W. Frenzen; and for the National Organization of Social Security Claimants’ Representatives by James E. Coleman, Jr., Joseph E. Killory, Jr., and Nancy G. Shor.

   Justice Stevens

delivered the opinion of the Court.

The Equal Access to Justice Act (EAJA) directs a court to award “fees and other expenses” to private parties who prevail in litigation against the United States if, among other conditions, the position of the United States was not “substantially justified.” In many cases parties are able to resolve by stipulation a claim for fees under the EAJA. In some cases, however, a fee application will prompt the Government to litigate aspects of the fee request or require the court to convene a hearing before deciding if an award of fees and expenses is authorized. The question in this case is whether a prevailing party is ineligible for fees for the services rendered during such a proceeding unless the Government’s position in the fee litigation itself is not “substantially justified.”

Because the question for decision is so narrow—affecting only eligibility for compensation for services rendered for fee litigation rather than the amount that may be appropriately awarded for such services—it is not necessary to restate the protracted history of this vigorously contested litigation. It is sufficient to note that the District Court expressly found that respondents “were the prevailing parties within the meaning of the Act, that the government’s position was not substantially justified and that there are no other special circumstances that would make an award unjust.” The Court of Appeals upheld these findings. Jean v. Nelson, 863 F. 2d 759, 765-769 (CA11 1988). After an extensive review of the record developed at the fee hearing, however, the Court of Appeals decided that certain errors required that the case “be remanded for recalculation of attorney’s fees and expenses.” Id., at 780. In view of this holding, we must assume that at least some of the positions petitioners took regarding the proper fee were substantially justified, even though their position on the merits of the litigation was not. Thus, the record squarely presents the question whether the District Court must make a second finding of no “substantial justification” before awarding respondents any fees for the fee litigation.

Petitioners concede that fees for time and expenses incurred in applying for fees are appropriate, but take the position that, unless the court finds that their position in the fee litigation itself was not substantially justified, fees for any litigation about fees are not recoverable. It is respondents’ position that fee litigation is a component part of an integrated case and that if the statutory prerequisites for an award of fees for prevailing in the case are satisfied, the award presumptively encompasses services for fee litigation. Because the Courts of Appeals have resolved this question differently, we granted certiorari. 493 U. S. 1055 (1990).

I

Section 2412(d)(1)(A) of Title 28 provides:

“Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.”

Thus, eligibility for a fee award in any civil action requires: (1) that the claimant be a “prevailing party”; (2) that the Government’s position was not “substantially justified”; (3) that no “special circumstances make an award unjust”; and, (4) pursuant to 28 U. S. C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement. Only the application of the “substantially justified” condition is at issue in this case.

The most telling answer to petitioners’ submission that they may assert a “substantial justification” defense at multiple stages of an action is the complete absence of any textual support for this position. Subsection (d)(1)(A) refers to an award of fees “in any civil action” without any reference to separate parts of the litigation, such as discovery requests, fees, or appeals. The reference to “the position of the United States” in the singular also suggests that the court need make only one finding about the justification of that position.

In 1985, Congress amended the EAJA, adding the following definition:

“(D) ‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings.” Pub. L. 99-80, 99 Stat. 185, § 2(c)(2)(B), 28 U. S. C. § 2412(d)(2)(D).

The fact that the “position” is again denominated in the singular, although it may encompass both the agency’s pre-litigation conduct and the Department of Justice’s subsequent litigation positions, buttresses the conclusion that only one threshold determination for the entire civil action is to be made.

The language Congress chose in describing the fee application procedure in § 2412(d)(1)(B) corroborates the statute’s other references to a single finding. A fee application must contain an allegation “that the position of the United States was not substantially justified.” Ibid. Again, the reference is to only one position, and it is to a position that the Government took in the past. There is no reference to the position the Government may take in response to the fee application. Moreover, the 1985 amendment to § 2412(d)(1)(B) directs a court to determine whether the Government’s past position was substantially justified “on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” Pub. L. 99-80, 99 Stat. 184-185, § 2(b), 28 U. S. C. § 2412(d)(1)(B). The reference to “the record” in the civil action is again in the singular.

The single finding that the Government’s position lacks substantial justification, like the determination that a claimant is a “prevailing party,” thus operates as a one-time threshold for fee eligibility. In EAJA cases, the court first must determine if the applicant is a “prevailing party” by evaluating the degree of success obtained. If the Government then asserts an exception for substantial justification or for circumstances that render an award unjust, the court must make a second finding regarding these additional threshold conditions. As we held in Hensley v. Eckerhart, 461 U. S. 424 (1983), the “prevailing party” requirement is “a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is ‘reasonable.’” Id., at 433. Similarly, once a private litigant has met the multiple conditions for eligibility for EAJA fees, the district court’s task of determining what fee is reasonable is essentially the same as that described in Hensley. See id., at 433-437.

In Hensley, we emphasized that it is appropriate to allow the district court discretion to determine the amount of a fee award, given its “superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Id., at 437. The EAJA prescribes a similar flexibility. Section § 2412(d)(1)(C) empowers the district court, “in its discretion,” to “reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.” This exception to a fee award was repeated in the 1985 amendment that added a definition of “position of the United States,” by there excluding fees and expenses “for any portion of the litigation in which the party has unreasonably protracted the proceedings.” Supra, at 159; § 2412(d)(2)(D). Thus, absent unreasonably dilatory conduct by the prevailing party in “any portion” of the litigation, which would justify denying fees for that portion, a fee award presumptively encompasses all aspects of the civil action.

Any given civil action can have numerous phases. While the parties’ postures on individual matters may be more or less justified, the EAJA—like other fee-shifting statutes —favors treating a case as an inclusive whole, rather than as atomized line-items. See, e. g., Sullivan v. Hudson, 490 U. S. 877, 888 (1989) (where administrative proceedings are “necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded”). Cf. Gagne v. Maher, 594 F. 2d 336, 344 (CA2 1979) (“[D]enying attorneys’ fees for time spent in obtaining them would ‘dilute the value of a fees award by forcing attorneys into extensive, uncompensated litigation in order to gain any fees’ ” under 42 U. S. C. § 1988), aff’d on other grounds, 448 U. S. 122 (1980); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 559 (1986) (fees for postjudgment proceedings to enforce consent decree properly compensable as a cost litigation under § 304(d) of the Clean Air Act); New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 (1980) (fees for administrative proceedings included under § 706(k) of Title VII of the Civil Rights Act of 1964). Petitioners acknowledge that the EAJA may provide compensation for all aspects of fee litigation; they only dispute the finding necessary to support such an award. They would allow, without a specific threshold determination, fees for “‘the time spent preparing the EAJA fee application . . . because it is “necessary for the preparation of the party’s case[,]” 28 U. S. C. § 2414(d)(2) (A),”’ but they would subject a fee request for any further work in pursuing that application to an additional substantial justification defense. Brief for Petitioners 16, n. 17 (quoting Kelly v. Bowen, 862 F. 2d 1333, 1334 (CA8 1988)); see n. 4, supra. We find no textual or logical argument for treating so differently a party’s preparation of a fee application and its ensuing efforts to support that same application.

II

Petitioners further argue, as a matter of policy, that the allowance of an automatic award of “fees for fees” will encourage exorbitant fee requests, generate needless litigation, and unreasonably burden the federal fisc. Brief for Petitioners 26-31. The terms of the statute, as well as its structure and purpose, identify at least two responses to these arguments.

First, no award of fees is “automatic.” Eligibility for fees is established upon meeting the four conditions set out by the statute, but a district court will always retain substantial discretion in fixing the amount of an EAJA award. Exorbitant, unfounded, or procedurally defective fee applications—like any other improper position that may unreasonably protract proceedings—are matters that the district court can recognize and discount. Petitioners’ fear that such requests will receive “automatic” approval is unfounded. In contrast, requiring courts to make a separate finding of “substantial justification” regarding the Government’s opposition to fee requests would multiply litigation. “A request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U. S., at 437. As petitioners admit, allowing a “substantial justification” exception to fee litigation theoretically can spawn a “Kafkaesque judicial nightmare” of infinite litigation to recover fees for the last round of litigation over fees. Brief for Petitioners 29; Cinciarelli v. Reagan, 234 U. S. App. D. C. 315, 324, 729 F. 2d 801, 810 (1984).

Second, the specific purpose of the EAJA is to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions. See Sullivan v. Hudson, 490 U. S., at 883. The EAJA applies to a wide range of awards in which the cost of litigating fee disputes would equal or exceed the cost of litigating the merits of the claim. If the Government could impose the cost of fee litigation on prevailing parties by asserting a “substantially justified” defense to fee applications, the financial deterrent that the EAJA aims to eliminate would be resurrected. The Government’s general interest in protecting the federal fisc is subordinate to the specific statutory goals of encouraging private parties to vindicate their rights and “curbing excessive regulation and the unreasonable exercise of Government authority.”

The “substantial justification” requirement of the EAJA establishes a clear threshold for determining a prevailing party’s eligibility for fees, one that properly focuses on the governmental misconduct giving rise to the litigation. The EAJA further provides district courts discretion to adjust the amount of fees for various portions of the litigation, guided by reason and statutory criteria. The purpose and legislative history of the statute reinforce our conclusion that Congress intended the EAJA to cover the cost of all phases of successful civil litigation addressed by the statute.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

       28 U. S. C. § 2412(d)(1)(A). The EAJA, Pub. L. 96-481, 94 Stat. 2325, and its extension and amendment, Pub. L. 99-80, 99 Stat. 183, authorized fee awards to prevailing parties in both federal agency adjudications and certain civil actions. It therefore amended relevant portions of the Administrative Procedure Act (APA), 5 U. S. C. § 504 et seq., as well as the Judicial Code, 28 U. S. C. § 2412 et seq. This case involves only the latter portion of the EAJA.

       The fee litigation is the subject of Louis v. Nelson, 624 F. Supp. 836 (SD Fla. 1985) (initial order), Louis v. Nelson, 646 F. Supp. 1300 (SD Fla. 1986) (corrected memorandum after hearing), and Jean v. Nelson, 863 F. 2d 759 (CA11 1988). The history of the litigation of the merits is traced in a dozen other opinions. Louis v. Meissner, 530 F. Supp. 924 (SD Fla. 1981); Louis v. Meissner, 532 F. Supp. 881 (SD Fla. 1982); Louis v. Nelson, 544 F. Supp. 973 (SD Fla. 1982); Louis v. Nelson, 544 F. Supp. 1004 (SD Fla. 1982); Jean v. Nelson, 683 F. 2d 1311 (CA11 1982); Jean v. Nelson, 711 F. 2d 1455 (CA11 1983); Louis v. Nelson, 560 F. Supp. 896 (SD Fla. 1983); Louis v. Nelson, 560 F. Supp. 899 (SD Fla. 1983); Louis v. Nelson, 570 F. Supp. 1364 (SD Fla. 1983); Jean v. Nelson, 727 F. 2d 957 (CA11 1984) (en banc); Jean v. Nelson, 472 U. S. 846 (1985); Jean v. Nelson, 854 F. 2d 405 (CA11 1988).

       624 F. Supp., at 837. With respect to the lack of substantial justification, the court explained: “In light of prior precedent and the advice of counsel, [the Immigration and Naturalization Service’s] refusal to comply with the APA was not reasonable; nor was the position of the United States Attorney’s Office in defending these actions by claiming that the change in policy was not a rule subject to the rulemaking requirements of the APA.” Id., at 839.

         Petitioners divide the consideration of EAJA fee awards into two stages:
      “In our view, it is appropriate to include reasonable fees and expenses incurred in preparing a fee application as part of any award of fees for the merits phase of the litigation. But . . . the government should not be required to pay for attorney’s fees and expenses incurred in separate litigation over the availability and size of the fee award unless the position of the government in this distinct phase of the ease was not substantially justified.” Brief for Petitioners 15-16 (footnote omitted).

       Compare Cinciarelli v. Reagan, 234 U. S. App. D. C. 315, 729 F. 2d 801 (1984); McDonald v. Secretary of Health and Human Services, 884 F. 2d 1468 (CA1 1989); Trichilo v. Secretary of Health and Human Services, 823 F. 2d 702 (CA2 1987); Powell v. Commissioner, 891 F. 2d 1167 (CA5 1990) (no additional finding of substantial justification required), with Continental Web Press, Inc. v. NLRB, 767 P. 2d 321 (CA7 1985); Cornella v. Schweiker, 741 F. 2d 170 (CA8 1984); National Wildlife Federation v. FERC, 870 P. 2d 542 (CA9 1989) (additional finding required).

       We have held that the term “substantially justified” means “‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable person. That is no different from the ‘reasonable basis both in law and fact’ formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue. To be ‘substantially justified’ means, of course, more than merely undeserving of sanctions for frivolousness.” Pierce v. Underwood, 487 U. S. 552, 565-566 (1988) (citations omitted).

       Congress’ emphasis on the underlying Government action supports a single evaluation of past conduct. See H. R. Rep. No. 98-992, pp. 9, 13 (1984) (“[T]he amendment will make clear that the Congressional intent is to provide for attorney fees when an unjustifiable agency action forces litigation, and the agency then tries to avoid such liability by reasonable behavior during the litigation”); S. Rep. No. 98-586, p. 10 (1984) (“Congress expressly recognized ‘that the expense of correcting error on the part of the Government should not rest wholly on the party whose willingness to litigate or adjudicate has helped to define the limits of Federal authority.’ [H. R. Rep. No. 96-1418, p. 10 (1980).] The ‘Government error’ referred to is not one of the Department of Justice’s representatives litigating the case, but is rather the government action that led the private party to the decision to litigate”).

       The House Report on the amendment echoes this finality:
      “When the case is litigated to a final decision by a court or adjudicative officer (or even when the case is settled after only some litigation procedures) the evaluation of the government’s position will be straightforward, since the parties will have already aired the facts that led the agency to bring the action. No additional discovery of the government’s position will be necessary, for EAJA petition purposes.” H. R. Rep. No. 99-120, p. 13 (1985) (emphasis added).

       A cursory review of EAJA fee awards in 1989 (prior to appellate review) reveals that district courts substantially reduced the amounts of fees requested by parties. Out of 502 applications in 1989, the 413 that were granted requested a total of $2,419,123 in fees and expenses, of which only $1,850,906 were awarded. Annual Report of the Director of the Administrative Office of the U. S. Courts, Report of Fees and Expenses Awarded Under the Equal Access to Justice Act 99, Table 32 (1989) (hereinafter 1989 Report of Fees).

       Because Hensley v. Eckerhart, 461 U. S. 424, 437 (1983), requires the district court to consider the relationship between the amount of the fee awarded and the results obtained, fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation. For example, if the Government’s challenge to a requested rate for paralegal time resulted in the court’s recalculating and reducing the award for paralegal time from the requested amount, then the applicant should not receive fees for the time spent defending the higher rate.

       Congress prefaced the EAJA with this statement of its findings and purposes:

        ‘“(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.
      “‘(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.
      “‘(c) It is the purpose of this title—
      “‘(1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and
      “‘(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the ‘American rule’ respecting the award of attorney fees.’ ” Congressional Findings and Purposes, note following 5 U. S. C. § 504.

       Ninety percent of EAJA fee awards are made in cases involving the Department of Health and Human Services. In 1989, these awards averaged less than $3,000 each. 1989 Report of Fees, p. 100, Table 32.

       EAJA awards have remained comfortably under the Congressional Budget Office’s 1985 Cost Estimate of 1,000 awards annually, averaging $6,000 each, by 1990. H. Supp. Rep. No. 99-120, pt. 2, p. 3 (1985). Although this ease involves an exceptionally large award (the District Court’s initial fee award totaled more than $1 million, 646 F. Supp., at 1323), in 1986 the average fee award under the EAJA, prior to appellate review, was $3,821. Annual Report of the Director of the Administrative Office of the U. S. Courts, Report of Fees and Expenses Awarded Under the Equal Access to Justice Act 93, Table 31 (1986). The average of the 413 awards granted in 1989, prior to appellate review, was $4,482. 1989 Report of Fees, p. 97, Table 31.

       H. R. Rep. No. 96-1418, p. 12 (1980). The Committee Reports of both the House and the Senate reflect the dual concerns of access for individuals and improvement of Government policies.
      “[T]he Government with its greater resources and expertise can in effect coerce compliance with its position. Where compliance is coerced, precedent may be established on the basis of an uncontested order rather than the thoughtful presentation and consideration of opposing views. In fact, there is evidence that small businesses are the target of agency action precisely because they do not have the resources to fully litigate the issue. This kind of truncated justice undermines the integrity of the decision-making process.
      “The exception created by [the EAJA] focuses primarily on those individuals for whom cost may be a deterrent to vindicating their rights. The bill rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy. An adjudication or civil action provides a concrete, adversarial test of Government regulation and thereby insures the legitimacy and fairness of the law. An adjudication, for example, may show that the policy or factual foundation underlying an agency rule is erroneous or inaccurate, or it may provide a vehicle for developing or announcing more precise rules. . . . Where parties are serving a public purpose, it is unfair to ask them to finance through their tax dollars unreasonable Government action and also bear the costs of vindicating their rights.” Id., at 10.
      “Providing an award of fees to a prevailing party represents one way to improve citizen access to courts and administrative proceedings. When there is an opportunity to recover costs, a party does not have to choose between acquiescing to an unreasonable Government order or prevailing to his financial detriment. . . . By allowing a decision to contest Government action to be based on the merits of the case rather than the cost of litigating, [the EAJA] helps assure that administrative decisions reflect informed deliberation.” S. Rep. No. 96-253, p. 7 (1979).