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    Pliny Cutler, Appellant, v. William A. Rae.
    (7 Howard, 729-738.)
   My attention was called early in this term of the court, by a letter from F. C. Loring, Esquire, Counsellor at Law in Boston, to the declaration in the first sentence of my opinion in the above case, “that this court has'decided an important constitutional question of admiralty jurisdiction, without either oral or printed argument.”

Mr. Loring’s letter was the first intimation I had, that an argument upon the jurisdiction had been filed by him, upon the part of the libellant and appellee in the cause.

Subsequently, my attention was called to Mr. Loring’s argument by my brother Nelson, and afterwards it was made the subject of remark in one of the court’s conferences, by the Chief Justice.

It is due to myself, to Mr. Loring as counsel in the cause, to the court, and particularly to the Chief Justice, who delivered the court’s opinion, that I should say that an argument upon the constitutional jurisdiction was filed by Mr. Loring. The history of the cause in the Supreme Court was as I shall here state.

The case was filed and docketed, January 6th, 1847. On the 16th of February, Mr. Loring and Mr. Fletcher filed their arguments upon the merits, and an order was made to submit the cause upon them. So .the case stood until the last term of the court. In 1848, January 24th, the case was again submitted upon printed arguments by' the same counsel. In neither was the constitutional question of jurisdiction touched. On the 17th of February, the court passed the following order, I believe upon the suggestion of the Chief Justice— “ In the printed arguments filed in this case, .the question of jurisdiction raised by the fourth point stated in the record has not been noticed. The court desire that point to be argued by counsel, either by printed argument or orally at the bar, as counsel may prefer.” Under this order, Mr. Loring filed his argument upon the jurisdiction. Afterwards, on the 22d of December, 1848, the following letter from B. R. Curtis, Esquire, to David H. Hall, Esquire, of Washington City, was read to the court by the latter, and was filed with the other papers in the cause.

“ Boston, December ‘HQth, 1848.

“ Dear Sir, — In the case of Rae and Cutler in the Supreme Court, respecting which Mr. Fletcher has heretofore corresponded with you, I have to request that you would make known to the court, that the appellant has instructed his counsel not to insist upon the objection to the jurisdiction which appears on the record; and that for this cause the counsel present no argument in support of the exception. The parties in interest are the underwriters, and they feel desirous that the courts of the United States sitting in admiralty should retain jurisdiction in cases of general average.

If the court should proceed to the merits, will you allow me to ask you to refer them to a case not cited in the argument, of which notice has been given to Mr. Loring, the counsel for the appellee,—March v. Roberson, 4 Wheat. 360. You will of course make the proper charge for these services, and I will see you are paid.

“Your obedient servant,

“B. R. Curtis.

“David H. Hall, Esquire, Washington.”

On the 26th of the month, the cause was submitted on further argument by Mr. Loring, without argument upon the jurisdiction from the opposing counsel, and on the 2d of March, the judgment below was reversed for want of jurisdiction. See 7 Howard, 729. Without any fault upon the part of our Clerk, William Thomas Carroll, Esquire, whose care it is to distribute • briefs and arguments to the judges,'I did not receive Mr. Loring’s argument upon the jurisdiction. I aided in the court’s consultations upon the ’case, without knowing that such an argument had been filed, I gave an oral dissent from the judgment of this court dismissing the cause for want of jurisdiction, under that impression. The dissent was afterwards extended, as it appears in the report of the case, in the full belief that the counsel in the cause had disregarded the order of the court, and that the court-in deciding the case had yielded the point required by its order. I was misled by the letter from Mr. Curtis. I am pleased that it was otherwise. My duty growing out of it is the statement I have made. I also think it due to Mr. Loring, and to the court, to request the Hon. Benjamin C. Howard, the Reporter of the court, to print with this communication the argument made by Mr. Loring upon the jurisdiction of the court.

December Term, 1849.

Argument for the Libellant upon the Question of Jurisdiction.

The case presented is a claim by the owners of a ship against an owner of the cargo, to recover contribution for an injury voluntarily clone to the ship on the high seas, for the common benefit, by which the property, from the owner of which contribution is sought, was preserved from destruction by an impending peril.

Whether the facts in evidence make such a case as entitles the owner of the ship to a contribution has been previously discussed, in order to present the question of jurisdiction that must be assumed.

The question now to be considered is, whether such a claim is within the jurisdiction of the District Courts of the United States, sitting in admiralty, or, in other words, is a proper matter for admiralty and maritime jurisdiction. The late decisions of this tribunal upon the subject of jurisdiction limit the range of discussion, forasmiich as it must now be considered as settled that the admiralty jurisdiction of the courts of the United States, both as to contracts and torts, is more extensive than that exercised by the High Court of Admiralty of England at the time of the formation of the Constitution, and that, in cases of contracts, it embraces those “concerning the navigation and trade of the country upon the high seas and tide-waters, with foreign countries, and among the several States.” New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 Howard, 392; Waring v. Clark, 5 Howard, 431; Peyroux v. Howard, 7 Peters, 324.

In respect to causes involving constitutional questions being submitted to the court upon printed arguments, my impression has been that such cases were not within the rule. It has not with the judges been mine alone. It has, however, been done twice. The cases have been brought to my notice by the Chief Justice. Once in the case of Bronson v. Kinzie et al., 1 Howard, 311, upon a written submission with the consent of the court, and again at this term without opposition by any member of it, in the case of Nathan v. The State of Louisiana.

I shall hereafter consider it to be the understanding of the majority of the court, that the rule permitting cases to be submitted on printed arguments comprehends the submission of such as involve constitutional questions.

JAMES M. WAYNE,

Associate Justice Supreme Court U. States.

The present inquiry is, therefore, limited to the question, whether general average, or the right to claim contribution for sacrifices, losses, and expenses voluntarily incurred or suffered in the course of a voyage,.for the common benefit, is, or depends upon, a contract concerning the navigation and trade of the country.

This definition seems to assume the question. But it is impossible to define general average as a matter or incident pertaining to any thing but a marine voyage. The principle on which it is founded is, at least by the common law, exclusively limited to maritime' cases, and no case can be found in which it has ever been applied to facts happening on land unconnected with a ship, its cargo, or freight.

Parallel cases may occur on land; as, for instance, where a building has ‘been blown up or pulled down to prevent the spread of a conflagration; but there is no case to be found in which it has been held that the owner of the building had a claim for contribution for his loss upon .the owners of the adjacent buildings whose property was preserved by the sacrifice of his, and there is no authority to be found on which such a claim could be rested.

The case of Welles v. Boston Ins. Co., 6 Pick. 182, does not make an exception, because there the action was upon a policy of insurance, brought to recover the value of an article purchased, by the advice- of the defendants, for the purpose of preserving the property • and because the defendants were willing to pay a proportion, and actually paid it into court. The question of contribution was not, therefore, raised, discussed, or decided ; and, in fact,, the court intimated a doubt whether the defendants were liable at all in law, saying, “ for a proportion of the. sacrifice the defendants are equitably, if not legally, entitled, to, recover,” a sum exceeding which proportion the defendants had paid into court as above stated.

The books, in which the subject is discussed have been searched in vain to find a definition of general average or contribution, in which it is not exclusively confined to maritime cases. In those which treat of shipping and insurance, where this subject is necessarily discussed, this, it may be said, must be expected, and therefore they furnish no weight of authority ; but the same definition is to be found in the books which profess to treat of the law at large, and in decisions of common law courts,

3 Kent’s Commentaries, p. 232: — “ The doctrine of general average grows out of the incidents of a mercantile voyage, and the duties which it creates apply equally to the owner of the ship and of the cargo. ' General, gross, or extraordinary average, means a contribution, made by all the parties concerned, towards a loss sustained by some of the parties in interest, for the benefit of alb; and it is called general or gross average, because it falls upon the gross amount of ship, cargo, and freight.”

Simonds v. White, 2 Barn. & Cres. 808: — “The obligation to contribute depends not so much upon the terms of any particular instrument as upon a general rule of maritime law."

Scai v. Tobin, 3 Barn. & Adolph. 523: — “ The question of liability here (general average) depends entirely on the maritime law."

Citations to the same effect might be multiplied ad infinitum.

The doctrine of general average, growing out of the incidents of a mercantile voyage, and relating exclusively to ship, cargo, and freight, and depending upon the maritime law, necessarily from its very definition pertains to the trade and navigation of the country upon the high seas and tide-waters, and-therefore falls within the admiralty .jurisdiction, as established by this court in its most recent, as w ell as in many previous decisions.

General average is sometimes considered as arising out of the contract of affreightment; that is, that there is a contract implied by law. between the owners’of the ship and the owners of the cargo, by which it is agreed, that, in case it should be necessary for the common benefit that any sacrifice be made of the vessel or cargo, the owners of what is preserved thereby shall contribute to make good that loss. Pothier, Maritime Contracts, Part 1, sect. 3, art. 96: — “ Finally, the freighter contracts the obligation of contributing to the common average.” And Part 2, sect. 1: — “The merchant who lades goods by the contract of charter-party, (or affreightment,) promises the master by the contract to contribute to the common average which may take place during the voyage; and, vice versa, the master virtually promises the merchant shipper, in case his property suffer any average losses for the good of all, to cause him to receive an indemnity by contribution of the owners of the ship and other merchants. The subject of this contribution is, therefore, dependent on the contract of charter-party, and ought to be considered next to this contract. Average in marine language signifies the loss and damage suffered in the course of navigation. Common average is that suffered for the common safety, and alone admits of contribution.”

If the doctrine of general average is to be considered as growing out of the contract of affreightment, it is a part of the contract, and therefore, by the decision in 6 Howard, falls within the jurisdiction of the District Court. It being expressly decided in that case, that the contract of affreightment is within the jurisdiction.

And while referring to that case, in which it was conceded by counsel, that the Admiralty Court of England would not exercise jurisdiction over a contract of charter-party or affreightment, and upon which assumed fact the division of opinion in the court seemed to arise, it may be remarked that the concession was unnecessary, and not correct in point of fact. There is a case in the first volume of Haggard’s Reports, p. 226, The Elizabeth, in which the jurisdiction was exercised and sustained by Lord Stowell, in a suit on a charter-party for the charter money. The suit was originally brought in a Yice-Admiralty Court. A protest was made to the jurisdiction, which was overruled, and an appeal taken to the High Court of Admiralty. The appeal not being prosecuted, the defendants moved to have it pronounced deserted and for costs, which was granted.

The question of jurisdiction, it is true, was not argued in the higher court, but the judgment of the lower court was not reversed, as it must have been if the court had no jurisdiction over the subject-matter. See also the case of The Fly, 2 Browne’s Civil and Adm. Law, 539, which was a suifbrought in the admiralty on a charter-party for damages, which was entertained, and relief granted.

These cases fully sustain the proposition of Dr. Browne, that the court of admiralty could not refuse to entertain jurisdiction over a charter-party unless prohibited, and demolish the argument against the jurisdiction of the District Court over contracts of affreightment, which depends entirely on the assumed fact that they were not subjects of admiralty jurisdiction in England.

If, however, the claim for general average is to be considered as a quasi contract, created by implication of law at the time when the voluntary loss or sacrifice is incurred, then, whenever that happens upon the high seas, the locality is maritime, the service is maritime, and all the elements exist necessary to bring the case within admiralty jurisdiction.

Indeed, it would be difficult to conceive of a service more purely and exclusively maritime .than a jettison for the common safety upon the high seas, and the rights and duties growing out of it necessarily follow the principle.

Salvage is a subject of admiralty jurisdiction in England as well as' in .this country, and the jurisdiction has never been questioned; but it is extremely difficult to see any respect in AV-hich salvage differs from general average, so that one should be without and the other Avithin the jurisdiction.

The service in both cases is maritime, and the object in both is. to save property. If to tow a deserted vessel into port, or to take cargo out of her, or to render assistance to a vessel on shore in distress, are maritime services, it is difficult to see why the claim for contribution of an owner whose cargo is jettisoned for the common safety, or of a vessel the masts of ^ which are cut away, or which is voluntarily run on shore for' the purpose of saving life, vessel, and cargo, does not equally depend upon a maritime service, and should not be a subject of the same jurisdiction.

Indeed, there is no distinction made between them in the books;-they are usually considered together, in the same chapter, as “ Salvage and General Average,” and are often spoken of together as the “quasi contracts of salvage and general average.”

The jurisdiction of the admiralty over this subject may be put upon the ground of the lien which exists on the part of the owner of the thing sacrificed upon the things preserved.

The existence of this lien in rem is universally admitted.

1 Emerigon’des Ass.,p. 651, ch. 12, sect. 43: — “L’action en contribution est reele de sa nature.” .

Gasaregis, Disc. 45, n. 34: — “ Actio ad petendam contribution em est in rem scripta.”

Ordonnanees de la Marine, liv. 3, tit. 8, sect. 21: —• “ Si aucuns des contribuables refusent de payer leurs parts, ie maitre pourra, pour sureté de la contribution reteñir, méme faire A’endre par autorité de justice, des marchandises, jusqu’a concurrence de leur portion.”

LaAvs of Oleron, art. 9: — “ When the vessel arrives, the merchants should pay their proportions (of the contribution), or the master may sell or pawn the goods, and use the money so raised to pay the same before the cargo is unladen.”

Its existence is also recognized in the courts of common law here, and in England. Simonds v. White; 8 Barn. & Cress. 805; Strong v. New York Fire Insurance Co., 11 Johns. 323; United States v. Wilder, 3 Sumner, 308; Scai v. Tobin, 3 Barn. & Adolph. 523; Chamberlain v.- Reed, 13 Maine, 387; American Ins. Co. v. Coster, 3 Paige, 323; Cole v. Bartlett, 4 Miller, 139.

The existence of a maritime lien in rem has been held to be a sufficient ground for asserting admiralty jurisdiction, because no other court can enforce it.

Menetone v. Gibbens, 3 Term Rep. 269. Per Lord Kenyon : — “It would be highly inconvenient (if the admiralty had not jurisdiction), because that court proceeds in rem, whereas the courts of common law can .only proceed against the parties.”

Per Ashurst: — “One strong reason-for supporting the'admiralty jurisdiction is, that in these cases that court proceeds in rem ; wljereas we can give no such relief.”

The reasons on which this doctrine is founded are stated in the case of The Spartan, Ware’s Reports, 154: — “There is another ingredient in this case which I hold to be conclusive in favor of the jurisdiction. If there is here an implied hypothecation raised by the law, it can be enforced by.no other than an admiralty court.

“It isa right adhering to the thing, a jus in re which is to be made available against the thing in specie. The course of the common law allows of no process upon the hypothecation by which the subject itself is directly reached, and a satisfaction for this right extracted from it. If a court of admiralty cannot entertain jurisdiction of the case, then the law has given the right, it has provided the security, but has refused the only means by which it can be rendered with certainty available. It holds out the right, and holds back the remedy. Where the law raises a lien for maritime service, I hold that- this court has the power to carry it into effect.”

Also by Judge Story, in United States v. Wilder, 3 Sumner, 311: — “It is a case of general average, where, as in case of salvage, the right of the party arises from sacrifices made for the common benefit, or labor and services performed for the common safety. Under such circumstances, the general maritime law enforces a contribution independent of any notion of a contract, upon the ground of justice and equity, according to the maxim, qui sentit commodutn, sentiré debet et onus. And it gives a lien in rem for the contribution, not as the only remedy, but as in many cases the best remedy, and in some cases the only remedy; as, for example, where the owner of the goods is unknown. Indeed, it may be asserted with entire confidence, that in a great variety of cases, without such a lien, the ship-owner would be without any adequate redress, and would encounter most perilous responsibility.”

Another ground on which the jurisdiction may be sustained is, that the subject-matter is within the jurisdiction of the High Court of Admiralty in England.

That court, it is well known, formerly exercised jurisdiction over all contracts and torts of a maritime nature ; and its present limited jurisdiction is the consequence of the encroachments of the common law courts.

Some subjects, however, have been left for its jurisdiction : the courts of common law having contented themselves Avitli a concurrent jurisdiction, and among these may be classed the one' now under consideration.

That this was originally Avithin the jurisdiction of the maritime courts in England, and on the Continent, cannot be questioned.

It is treated of in the Consulat del Mare, and in all the codes of maritime laws established for the government and direction of the maritime tribunals, some of which contain express directions to the master to appear' before the court of admiralty in such cases (Qrd. dé la Mar., liv. 3, tit. 8, art. 5) ; and is in its nature so purely of the sea, and so exclusive of the land, that it is not properly Avithin the jurisdiction of any other tribunal;' and it is not until Avithin very recent times that courts of equity and common law have entertained jurisdiction over it, the first case at common laAV being in 1801.

It is highly improbable that there have not been previous disputes and lawsuits groAving out of claims for contribution; these suits havé not been at larv or in equity, because the decisions of these courts are reported, and there are none relating to this subject; if. there have been any such suits, and it seems impossible that there should not have been, they must, therefore, have been brought in the admiralty court, the decisions of Avhich, previous to 1798, are not in print.

There is no case to be found in which a prohibition has been granted, or even asked, to prevent the court of admiralty from entertaining a case of this kind.

The negative testimony in favor of the jurisdiction in England is, therefore, very strong; as it appears that the subject is properly a matter of admiralty jurisdiction, and there is no case, and no authority, in or by which it has been questioned.

But there is other proof to sustain the jurisdiction other than that derived from the absence of all denial or question respecting it.

In a book .published in London, in 1705, entitled, “ A Treatise on the Dominion and Laws of the Seas,” it is asserted, without qualification, that the jurisdiction of the admiralty court extends to “all cases of gross adventure, all causes of jactas, and contributions with average.”

2 Browne’s Civil and Adm. Law, 122: — “If a party institute a suit in that court on a charter-party for freight, in a cause of average and contribution, or to decide the property of a ship, and be not prohibited, I do not see how t'he court could refuse to entertain it.”

There is no case in which a prohibition has been, granted where contribution was claimed.

"Weskett on Ins. 135. Master may detain goods (in case of average), and juridically sell.

The Copenhagen, 1 Rob. Adm. 289. In this case the question whether there ought to be a contribution was considered by Sir W. Scott, without an intimation of a doubt in respect to the jurisdiction, nor was it incidental to the question of prize; it was a separate suit after the vessel had been restored. The court say expressly, “ This is not merely or originally a matter of prize; she came in first from distress,” <fcc. ^ “ In this case the transshipping, or rather the unloading, of the goods seems to have been for the common benefit of both, and therefore the expense of it seems to have the character of a general average.”

It is therefore, so far as the jurisdiction is concerned, a case in point. The subject of general average was entertained, and no prohibition granted, if any was applied for.

The Eleonora Catharina, 4 Rob. 156. The question was entertained incidentally, whether a jettison was made for the common benefit.

The Gratitudine, 3 Rob. 240. In this case the power of the master to bind the ship, cargo, and freight by an express hypothecation, and the remedy in admiralty, are fully sustained. The same principles and reasons apply to the implied hypothecation created by law in cases of general average, and it is so considered and held by the court and the case referred to in illustration.

By the Articles of 16 February, 1633, it was declared, “that if suit shall be in the Court of Admiralty for building, amending, saving, or necessary victualling the ship, against the ship, and not against any party by name, no prohibition shall be granted, though this be done within the realm.”

It would be no great straining of the word saving to apply it to those cases where the ship was preserved by a’sacrifice of the cargo or a part of it, and thereby to bring cases of general average within the express terms of the Articles.

See decisions in relation these Articles. The Hope, 3 Rob 216, and The Trelaconey, 3 Rob. 216, note.

3 Salkeld, 23, adjudged, that where a master pawns the ship at sea, the admiralty hath a jurisdiction; and.that he may pawn to relieve the ship in extremity, for he being constituted master of the ship hath impliedly a power to preserve it in cases of danger.” This would seem, from the language used, to apply to cases of extreme danger at sea, and if so, must be limited to the hypothecation created by law in cases of general average. But if it refers to the general power of the master to pawn the ship in foreign parts, it clearly recognizes the principle on which this suit is founded; and the same reasons exist for extending the admiralty jurisdiction over the hypothecations arising by the maritime law from the acts of .the master, and those arising from his express contracts.

The jurisdiction founded on an implied hypothecation is familiarly exercised in cases where repairs, &c., are made on foreign vessels, or.those of another State. The maritime law gives the lien, and courts of admiralty, in England, as well as in this country, enforce it, on the ground of an implied hypothecation ; the service ■ is not the less maritime certainly if rendered while on the sea, and to preserve the ship or cargo, and the existence of the lien in cases of general average has never been questioned.

A case is cited in 1 Molloy, 149, in which a master borrowed money to ransom the ship, and sued the owner for it in the admiralty, in relation to which a prohibition was applied for .and refused. It seems difficult to distinguish that case from the present in point of principle. See also cases of prohibition refused in Anonymous, Cro. Eliz. 685; Radley v. Egglesfield, 2 Saunders, 260.

The American authorities in favor of the jurisdiction are numerous' and direct. The question has not been previously before this tribunal, but the principles upon which it depends are maintained in the cases of The Gen. Smith, 4 Wheaton, 438; The St. Jago de Cuba, 9 Wheaton, 409; Peyroux v. Howard, 7 Peters, 329; Andrews v. Wall, 3 Howard, 568; New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 Howard, 344.

In the Circuit Courts there has been no express decision on the subject, but no case has been found where the jurisdiction has been questioned.

In De Lovio v. Boit, 2:Gallison, 475, it was held that the jurisdiction extended to all maritime contracts, and as to what were such, “ all civilians and’ jurists agree that in this appellation are included, among other things, charter-parties, affreightments, marine hypothecations, contracts for maritime service in the building, repairing, supplying, and navigating ships; contracts and quasi contracts respecting averages, contributions, and jettisons, and policies of insurance.”

Cases for the adjustment or recovery of contributions are of familiar occurrence in the District Court of Massachusetts, and probably elsewhere. Shelton v. Brig Mary, 5 Boston Law Reporter, 75; S. C., 6 ib. 73; Sparks v. Kittredge, 9 ib. 319, in the Massachusetts District; The Mutual Safety Ins. Co. v. Cargo of Ship George, 8 Law Reporter, 361, in the Southern District of New York; S. C., N. Y. Legal Observer for June, 1848, p. 260. Other cases have been cónsidered in the Massachusetts District Court, to the knowledge of counsel, which are not in print.

American Ins. Co. v. Coster, 3 Paige, 323. Process in the instance side of the admiralty court is mentioned as the ordinary mode of enforcing a maritime lien.

Dunlap’s Adm. Practice, p. 57: — “ Cases of general average are legitimate subjects of admiralty jurisdiction, being cases of implied contracts, arising out of the marine contract of shipment. The master has a lien upon the goods saved, to enforce the payment of the lawful contribution. This is the maritime law of Europe and of the United States. The admiralty courts are the proper tribunals to enforce this lien, and adjust speedily the contribution.”

. If there are any cases or any books in which the jurisdiction of the court of admiralty over cases of general average has been denied, they have escaped my research.

As it must be admitted that the subject is in its nature maritime, and a proper subject for the cognizance of a court of general admiralty and maritime jurisdiction, the only mode by which it could be excepted from the admiralty jurisdiction of the District Court would be to show that the English Admiralty Court would not entertain jurisdiction of it.

That this, if proved, would not be a sufficient argument has been repeatedly held by this court; but at least we might ask from those who deny the jurisdiction over general average, one solitary decision, or at least a dictum of some judge, or elementary writer, or compiler,, in support of such denial; but where is it to be found ?

Another ground on which the jurisdiction might be placed is that of necessity, expediency, and convenience.

The law gives (it is universally admitted) to the party entitled to contribution a lien, or jus in rem, against the property saved or benefited by the sacrifice.

It is equally certain that this lien cannot be enforced by a court of common law. If it be the owner of the ship who is entitled to a contribution, he may, having possession, retain the goods till his claim is settled, and in this way compel a payment; but if it be the owner of th~ cargo who is entitled, though he has an admitted lien upon the ship, cargo, and freight, he cannot enforce it in any way; he has no remedy at common law but a personal suit against the other owners; his lien is perfectly valueless, because the common law provides no way of enforcing it.

In fact there is no decision to the point that an action for contribution could be maintained at common law until the year 1801. Birldey v. Presgrave, 1 East, 220.

And if the question were not to be considered as settled by mere precedents, it might well be doubted whéther a court of common law had jurisdiction over the subject of general average any more than it has over salvage. See Abbott on Shipping, p. 657, note; Brevoor v. The Fair American, 1 Peters’s Adm. Dec. 94.

But admitting a concurrent jurisdiction, it is obvious that, apart from the defects of justice which must often be felt from the inability of a court of common law to enforce the lien, there are other serious inconveniences arising out of the necessity of bringing separate suits against each of the parties interested, and the impossibility of settling the general average case by one suit, and from the want of power in a court of common law to compel a discovery and the production of books, papers, &c. Twizell v. Allen, 5 Mees. & Welsh. 337. And that inconvenience is the moré forcibly felt in this country where different parties might elect different tribunals, one the common law courts, another the court of chancery; one might prefer to sue in the Federal, and another in the State courts, there being no court having and exercising a complete jurisdiction over the whole subject-matter.

If relief is sought in equity, all the parties may be joined and served, if within the jurisdiction; but if not, the absent parties aud their property cannot be bound, — and the lien is as unavailable in eqpityiis at law. It was expressly decided in Hallett v. Bousneld, 18 Ves. jr. 187, that the court would not, at tbe-iristance of a freighter, whose goods had been sacrificed, enjoin the master from delivering the residue of the cargo till the claim was settled and paid.

The inconveniences of the common law jurisdiction over this matter are forcibly stated in Story’s Equity Jurisprudence, Vol. I. p. 542, sect. 491, and as arising principally from the inability to bring all the parties interested before the court in any suit affecting a complete settlement; but the same objections apply to the jurisdiction of the court of, equity, if all the parties interested are not within the jurisdiction : the want of power to enforce the lien is as seriously felt there as in a court of common law, and the slow, tedious, expensive proceedings,of a court of equity constitute very formidable objections to the practical exercise of its jurisdiction in cases of this nature; and it is in fact very seldom resorted to. . In the reports of the United States and State courts-1 cannot find a case in which a suit for general average has been brought in equity, and in the English reports only two, one above referred to in 18 Yesey, and another in Shower’s Pari. Cases, p. 18.

On the other hand, the court of admiralty has all the advantages of a court of equity in such cases, without any of its disadvantages.

. If its process in personam be’resorted to, it is in fact the same thing, except that its proceedings are much less formal, technical, and dilatory; if recourse is had to process in rem,.the libellant gets the benefit of the lien and preference to which he is entitled at law and in equity; all persons interested are brought directly before the court; the property, if perishable, may be sold, or it may be delivered to .the claimants on stipulation ; the process, pleadings, and practice are direct, simple, and summary, the practice being, as it has been said, to proceed “ velis alatis,” or under full sail. The decree covers the whole subject-matter, and being in rem is conclusive upon all the parties interested, and the whole world.

It might not be easy to imagine a case more fit and proper for so much of its powers, pleadings, and proceedings as are peculiar to a court of admiralty, than one of general average, especially where there are mqny parties interested.

Another reason in favor of the jurisdiction on this, score is that of uniformity of decisions. The different rules, practices, and customs which prevail in relation to general average, the circumstances which give rise to it, and the mode of adjustment, have been a cause of much confusion and embarrassment, and have been greatly lamented by writers on commercial and maritime law.

If the admiralty cannot entertain jurisdiction over this subject, it must be left principally for the jurisdiction of the State courts and different rules and systems of law in relation to it must arise. The jurisdiction of the Federal courts at law and in equity, being dependent on the citizenship of parties, cannot always or generally be invoked, and the decisions of these courts, however highly respected, are not conclusive and binding upon the State courts.-

If, on the other hand, the admiralty has a rightful jurisdiction, the great advantages of its process will cause it to be exclusively resorted to for the determination of such cases, and the District Courts being bound by the decisions of this tribunal, a uniformity of principle and decision may be established through all the States, the advantages of which in a commercial nation, and where the case is of daily occurrence, can hardly be overstated.

CHARLES G. LORING, of Counsel for Libellant.


author: Chief Justice Rehnquist Justice Marshall,

text:
    UNITED STATES v. SOKOLOW
    No. 87-1295.
    Argued January 10, 1989
    Decided April 3, 1989

      Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, Stevens, O’Connor, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 11.

      Paul J. Larkin, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Patty Merkamp Stemler.

      Robert P. Goldberg argued the cause and filed a brief for respondent.
   Chief Justice Rehnquist

delivered the opinion of the Court.

Respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. A divided panel of the United States Court of Appeals for the Ninth Circuit held that the DEA agents did not have a reasonable suspicion to stop respondent, as required by the Fourth Amendment. 831 F. 2d 1413 (1987). We take the contrary view.

This case involves a typical attempt to smuggle drugs through one of the Nation’s airports. On a Sunday in July 1984, respondent went to the United Airlines ticket counter at Honolulu Airport, where he purchased two round-trip tickets for a flight to Miami leaving later that day. The tickets were purchased in the names of “Andrew Kray” and “Janet Norian” and had open return dates. Respondent paid $2,100 for the tickets from a large roll of $20 bills, which appeared to contain a total of $4,000. He also gave the ticket agent his home telephone number. The ticket agent noticed that respondent seemed nervous; he was about 25 years old; he was dressed in a black jumpsuit and wore gold jewelry; and he was accompanied by a woman, who turned out to be Janet Norian. Neither respondent nor his companion checked any of their four pieces of luggage.

After the couple left for their flight, the ticket agent informed Officer John McCarthy of the Honolulu Police Department of respondent’s cash purchase of tickets to Miami. Officer McCarthy determined that the telephone number respondent gave to the ticket agent was subscribed to a “Karl Herman,” who resided at 348-A Royal Hawaiian Avenue in Honolulu. Unbeknownst to McCarthy (and later to the DEA agents), respondent was Herman’s roommate. The ticket agent identified respondent’s voice on the answering machine at Herman’s number. Officer McCarthy was unable to find any listing under the name “Andrew Kray” in Hawaii. McCarthy subsequently learned that return reservations from Miami to Honolulu had been made in the names of Kray and Norian, with their arrival scheduled for July 25, three days after respondent and his companion had left. He also learned that Kray and Norian were scheduled to make stopovers in Denver and Los Angeles.

On July 25, during the stopover in Los Angeles, DEA agents identified respondent. He “appeared to be very nervous and was looking all around the waiting area.” App. 43-44. Later that day, at 6:30 p.m., respondent and Norian arrived in Honolulu. As before, they had not checked their luggage. Respondent was still wearing a black jumpsuit and gold jewelry. The couple proceeded directly to the street and tried to hail a cab, where Agent Richard Kempshall and three other DEA agents approached them. Kempshall displayed his credentials, grabbed respondent by the arm, and moved him back onto the sidewalk. Kempshall asked respondent for his airline ticket and identification; respondent said that he had neither. He told the agents that his name was “Sokolow,” but that he was traveling under his mother’s maiden name, “Kray.”

Respondent and Norian were escorted to the DEA office at the airport. There, the couple’s luggage was examined by “Donker,” a narcotics detector dog, which alerted on respondent’s brown shoulder bag. The agents arrested respondent. He was advised of his constitutional rights and declined to make any statements. The agents obtained a warrant to search the shoulder bag. They found no illicit drugs, but the bag did contain several suspicious documents indicating respondent’s involvement in drug trafficking. The agents had Donker reexamine the remaining luggage, and this time the dog alerted on a medium-sized Louis Vuitton bag. By now, it was 9:30 p.m., too late for the agents to obtain a second warrant. They allowed respondent to leave for the night, but kept his luggage. The next morning, after a second dog confirmed Donker’s alert, the agents obtained a warrant and found 1,063 grams of cocaine inside the bag.

Respondent was indicted for possession with the intent to distribute cocaine in violation of 21 U. S. C. § 841(a)(1). The United States District Court for Hawaii denied his motion to suppress the cocaine and other evidence seized from his luggage, finding that the DEA agents had a reasonable suspicion that he was involved in drug trafficking when they stopped him at the airport. Respondent then entered a conditional plea of guilty to the offense charged.

The United States Court of Appeals for the Ninth Circuit reversed respondent’s conviction by a divided vote, holding that the DEA agents did not have a reasonable suspicion to justify the stop. 831 F. 2d, at 1423. The majority divided the facts bearing on reasonable suspicion into two categories. In the first category, the majority placed facts describing “ongoing criminal activity,” such as the use of an alias or evasive movement through an airport; the majority believed that at least one such factor was always needed to support a finding of reasonable suspicion. Id., at 1419. In the second category, it placed facts describing “personal characteristics” of drug couriers, such as the cash payment for tickets, a short trip to a major source city for drugs, nervousness, type of attire, and unchecked luggage. Id., at 1420. The majority believed that such characteristics, “shared by drug couriers and the public at large,” were only relevant if there was evidence of ongoing criminal behavior and the Government offered “[e]mpirical documentation” that the combination of facts at issue did not describe the behavior of “significant numbers of innocent persons.” Ibid. Applying this two-part test to the facts of this case, the majority found that there was no evidence of ongoing criminal behavior, and thus that the agents’ stop was impermissible. The dissenting judge took the view that the majority’s approach was “overly mechanistic” and “contrary to the case-by-case determination of reasonable articulable suspicion based on all the facts.” Id., at 1426.

We granted certiorari to review the decision of the Court of Appeals, 486 U. S. 1042 (1988), because of its serious implications for the enforcement of the federal narcotics laws. We now reverse.

The Court of Appeals held that the DEA agents seized respondent when they grabbed him by the arm and moved him back onto the sidewalk. 831 F. 2d, at 1416. The Government does not challenge that conclusion, and we assume— without deciding — that a stop occurred here. Our decision, then, turns on whether the agents had a reasonable suspicion that respondent was engaged in wrongdoing when they encountered him on the sidewalk. In Terry v. Ohio, 392 U. S. 1, 30 (1968), we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity “may be afoot,” even if the officer lacks probable cause.

The officer, of course, must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’” Id., at 27. The Fourth Amendment requires “some minimal level of objective justification” for making the stop. INS v. Delgado, 466 U. S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” Illinois v. Gates, 462 U. S. 213, 238 (1983), and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, see United States v. Montoya de Hernandez, 473 U. S. 531, 541, 544 (1985).

The concept of reasonable suspicion, like probable cause, is not “readily, or even usefully, reduced to a neat set of legal rules.” Gates, supra, at 232. We think the Court of Appeals’ effort to refine and elaborate the requirements of “reasonable suspicion” in this case creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. In evaluating the validity of a stop such as this, we must consider “the totality of the circumstances — the whole picture.” United States v. Cortez, 449 U. S. 411, 417 (1981). As we said in Cortez:

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers.” Id., at 418.

The rule enunciated by the Court of Appeals, in which evidence available to an officer is divided into evidence of “ongoing criminal behavior,” on the one hand, and “probabilistic” evidence, on the other, is not in keeping with the quoted statements from our decisions. It also seems to us to draw a sharp line between types of evidence, the probative value of which varies only in degree. ' The Court of Appeals classified evidence of traveling under an alias, or evidence that the suspect took an evasive or erratic path through an airport, as meeting the test for showing “ongoing criminal activity.” But certainly instances are conceivable in which traveling under an alias would not reflect ongoing criminal activity: for example, a person who wished to travel to a hospital or clinic for an operation and wished to conceal that fact. One taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor. This is not to say that each of these types of evidence is not highly probative, but they do not have the sort of ironclad significance attributed to them by the Court of Appeals.

On the other hand, the factors in this case that the Court of Appeals treated as merely “probabilistic” also have probative significance. Paying $2,100 in cash for two airplane tickets is out of the ordinary, and it is even more out of the ordinary to pay that sum from a roll of $20 bills containing nearly twice that amount of cash. Most business travelers, we feel confident, purchase airline tickets by credit card or check so as to have a record for tax or business purposes, and few vacationers carry with them thousands of dollars in $20 bills. We also think the agents had a reasonable ground to believe that respondent was traveling under an alias; the evidence was by no means conclusive, but it was sufficient to warrant consideration. While a trip from Honolulu to Miami, standing alone, is not a cause for any sort of suspicion, here there was more: surely few residents of Honolulu travel from that city for 20 hours to spend 48 hours in Miami during the month of July.

Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion. See Florida v. Royer, 460 U. S. 491, 502 (1983) (opinion of White, J.); id., at 515-516 (Blackmun, J., dissenting); id., at 523-524 (Rehnquist, J., dissenting). We said in Reid v. Georgia, 448 U. S. 438 (1980) (per curiam), “there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” Id., at 441. Indeed, Terry itself involved “a series of acts, each of them perhaps innocent” if viewed separately, “but which taken together warranted further investigation. ” 392 U. S., at 22; see also Cortez, supra, at 417-419. We noted in Gates, 462 U. S., at 243-244, n. 13, that “innocent behavior will frequently provide the basis for a showing of probable cause,” and that “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” That principle applies equally well to the reasonable suspicion inquiry.

We do not agree with respondent that our analysis is somehow changed by the agents’ belief that his behavior was consistent with one of the DEA’s “drug courier profiles.” Brief for Respondent 14-21. A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a “profile” does not somehow detract from their evidentiary significance as seen by a trained agent.

Respondent also contends that the agents were obligated to use the least intrusive means available to verify or dispel their suspicions that he was smuggling narcotics. Id., at 12-13, 21-23. In respondent’s view, the agents should have simply approached and spoken with him, rather than forcibly detaining him. He points to the statement in Florida v. Royer, supra, at 500 (opinion of White, J.), that “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” That statement, however, was directed at the length of the investigative stop, not at whether the police had a less intrusive means to verify their suspicions before stopping Royer. The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police’s ability to make swift, on-the-spot decisions — here, respondent was about to get into a taxicab — and it would require courts to “indulge in ‘unrealistic second-guessing.’” Montoya de Hernandez, 473 U. S., at 542, quoting United States v. Sharpe, 470 U. S. 675, 686, 687 (1985).

We hold that the agents had a reasonable basis to suspect that respondent was transporting illegal drugs on these facts. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with our decision.

It is so ordered.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Because the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy to forget that our interpretations of such rights apply to the innocent and the guilty alike. Illinois v. Gates, 462 U. S. 213, 290 (1983) (Brennan, J., dissenting). In the present case, the chain of events set in motion when respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents at Honolulu International Airport led to the discovery of cocaine and, ultimately, to Sokolow’s conviction for drug trafficking. But in sustaining this conviction on the ground that the agents reasonably suspected Sokolow of ongoing criminal activity, the Court diminishes the rights of all citizens “to be secure in their persons,” U. S. Const., Arndt. 4, as they traverse the Nation’s airports. Finding this result constitutionally impermissible, I dissent.

The Fourth Amendment cabins government’s authority to intrude on personal privacy and security by requiring that searches and seizures usually be supported by a showing of probable cause. The reasonable-suspicion standard is a derivation of the probable-cause command, applicable only to those brief detentions which fall short of being full-scale searches and seizures and which are necessitated by law enforcement exigencies such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations. Terry v. Ohio, 392 U. S. 1, 30 (1968). By requiring reasonable suspicion as a prerequisite to such seizures, the Fourth Amendment protects innocent persons from being subjected to “overbearing or harassing” police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis of irrelevant personal characteristics such as race. Id., at 14-15, and n. 11 (citation omitted).

To deter such egregious police behavior, we have held that a suspicion is not reasonable unless officers have based it on “specific and articulable facts.” Id., at 21; see also United States v. Brignoni-Ponce, 422 U. S. 873, 880 (1975). It is not enough to suspect that an individual has committed crimes in the past, harbors unconsummated criminal designs, or has the propensity to commit crimes. On the contrary, before detaining an individual, law enforcement officers must reasonably suspect that he is engaged in, or poised to commit, a criminal act at that moment. See, e. g., Brown v. Texas, 443 U. S. 47, 51 (1979) (to detain, officers must “have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity”); Terry, supra, at 30 (reasonable suspicion exists only where policeman reasonably concludes, inter alia, “that criminal activity may be afoot”). The rationale for permitting brief, warrantless seizures is, after all, that it is impractical to demand strict compliance with the Fourth Amendment’s ordinary probable-cause requirement in the face of ongoing or imminent criminal activity demanding “swift action predicated upon the on-the-spot observations of the officer on the beat.” Terry, supra, at 20. Observations raising suspicions of past criminality demand no such immediate action, but instead should appropriately trigger routine police investigation, which may ultimately generate sufficient information to blossom into probable cause.

Evaluated against this standard, the facts about Andrew Sokolow known to the DEA agents at the time they stopped him fall short of reasonably indicating that he was engaged at the time in criminal activity. It is highly significant that the DEA agents stopped Sokolow because he matched one of the DEA’s “profiles” of a paradigmatic drug courier. In my view, a law enforcement officer’s mechanistic application of a formula of personal and behavioral traits in deciding whom to detain can only dull the officer’s ability and determination to make sensitive and fact-specific inferences “in light of his experience,” Terry, supra, at 27, particularly in ambiguous or borderline cases. Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile’s “chameleon-like way of adapting to any particular set of observations.” 831 F. 2d 1413, 1418 (CA9 1987). Compare, e. g., United States v. Moore, 675 F. 2d 802, 803 (CA6 1982) (suspect was first to deplane), cert. denied, 460 U. S. 1068 (1983), with United States v. Mendenhall, 446 U. S. 544, 564 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F. 2d 29, 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, 625 F. 2d 9, 12 (CA4 1980) (one-way tickets), with United States v. Craemer, 555 F. 2d 594, 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, 552 F. 2d 717, 720 (CA6 1977) (nonstop flight), with United States v. Sokolow, 808 F. 2d 1366, 1370 (CA9), vacated, 831 F. 2d 1413 (1987) (case below) (changed planes); Craemer, supra, at 595 (no luggage), with United States v. Sanford, 658 F. 2d 342, 343 (CA5 1981) (gym bag), cert. denied, 455 U. S. 991 (1982), with Sullivan, supra, at 12 (new suitcases); United States v. Smith, 574 F. 2d 882, 883 (CA6 1978) (traveling alone), with United States v. Fry, 622 F. 2d 1218, 1219 (CA5 1980) (traveling with companion); United States v. Andrews, 600 F. 2d 563, 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, 444 U. S. 878 (1979), with United States v. Himmelwright, 551 F. 2d 991, 992 (CA5) (acted too calmly), cert. denied, 434 U. S. 902 (1977). In asserting that it is not “somehow” relevant that the agents who stopped Sokolow did so in reliance on a prefabricated profile of criminal characteristics, ante, at 10, the majority thus ducks serious issues relating to a questionable law enforcement practice, to address the validity of which we granted certiorari in this case.

That the factors comprising the drug courier profile relied on in this case are especially dubious indices of ongoing criminal activity is underscored by Reid v. Georgia, 448 U. S. 438 (1980), a strikingly similar case. There, four facts, encoded in a drug courier profile, were alleged in support of the DEA’s detention of a suspect at the Atlanta Airport. First, Reid had arrived from Fort Lauderdale, Florida, a source city for cocaine. Second, he arrived in the early morning, when law enforcement activity is diminished. Third, he and his companion appeared to have no luggage other than their shoulder bags. And fourth, he and his companion appeared to be trying to conceal the fact that they were traveling together. Id., at 440-441.

This collection of facts, we held, was inadequate to support a finding of reasonable suspicion. All but the last of these facts, we observed, “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” Id., at 441. The sole fact that suggested criminal activity was that Reid “preceded another person and occasionally looked backward at him as they proceeded through the concourse.” Ibid. This observation did not of itself provide a reasonable basis for suspecting wrongdoing, for inferring criminal activity from such evidence reflected no more than an “‘inchoate and unparticularized suspicion or “hunch.”’” Ibid., quoting Terry, 392 U. S., at 27.

The facts known to the DEA agents at the time they detained the traveler in this case are scarcely more suggestive of ongoing criminal activity than those in Reid. Unlike traveler Reid, who sought to conceal the fact that he was traveling with a companion, and who even attempted to run away after being approached by a DEA agent, 448 U. S., at 439, traveler Sokolow gave no indications of evasive activity. On the contrary, the sole behavioral detail about Sokolow noted by the DEA agents was that he was nervous. With news accounts proliferating of plane crashes, near collisions, and air terrorism, there are manifold and good reasons for being agitated while awaiting a flight, reasons that have nothing to do with one’s involvement in a criminal endeavor.

The remaining circumstantial facts known about Sokolow, considered either singly or together, are scarcely indicative of criminal activity. Like the information disavowed in Reid as nonprobative, the fact that Sokolow took a brief trip to a resort city for which he brought only carry-on luggage also “describe[s] a very large category of presumably innocent travelers.” Id., at 441. That Sokolow embarked from Miami, “a source city for illicit drugs,” ante, at 3, is no more suggestive of illegality; thousands of innocent persons travel from “source cities” every day and, judging from the DEA’s testimony in past cases, nearly every major city in the country may be characterized as a source or distribution city. See, e. g., Buenaventura-Ariza, 615 F. 2d, at 31, n. 5. That Sokolow had his phone listed in another person’s name also does not support the majority’s assertion that the DEA agents reasonably believed Sokolow was using an alias; it is commonplace to have one’s phone registered in the name of a roommate, which, it later turned out, was precisely what Sokolow had done. That Sokolow was dressed in a black jumpsuit and wore gold jewelry also provides no grounds for suspecting wrongdoing, the majority’s repeated and unexplained allusions to Sokolow’s style of dress notwithstanding. Ante, at 4, 5. For law enforcement officers to base a search, even in part, on a “pop” guess that persons dressed in a particular fashion are likely to commit crimes not only stretches the concept of reasonable suspicion beyond recognition, but also is inimical to the self-expression which the choice of wardrobe may provide.

Finally, that Sokolow paid for his tickets in cash indicates no imminent or ongoing criminal activity. The majority “feel[s] confident” that “[m]ost business travelers . . . purchase airline tickets by credit card or check.” Ante, at 8. Why the majority confines its focus only to “business travelers” I do not know, but I would not so lightly infer ongoing crime from the use of legal tender. Making major cash purchases, while surely less common today, may simply reflect the traveler’s aversion to, or inability to obtain, plastic money. Conceivably, a person who spends large amounts of cash may be trying to launder his proceeds from past criminal enterprises by converting them into goods and services. But, as I have noted, investigating completed episodes of crime goes beyond the appropriately limited purview of the brief, Terry-style seizure. Moreover, it is unreasonable to suggest that, had Sokolow left the airport, he would have been gone forever and thus immune from subsequent investigation. Ante, at 11. Sokolow, after all, had given the airline his phone number, and the DEA, having ascertained that it was indeed Sokolow’s voice on the answering machine at that number, could have learned from that information where Sokolow resided.

The fact is that, unlike the taking of patently evasive action, Florida v. Rodriguez, 469 U. S. 1, 6 (1984), the use of an alias, Florida v. Royer, 460 U. S. 491, 502 (1983), the casing of a store, Terry, supra, at 6, or the provision of a reliable report from an informant that wrongdoing is imminent, Illinois v. Gates, 462 U. S., at 225-227, nothing about the characteristics shown by airport traveler Sokolow reasonably suggests that criminal activity is afoot. The majority’s hasty conclusion to the contrary serves only to indicate its willingness, when drug crimes or antidrug policies are at issue, to give short shrift to constitutional rights. See, e. g., Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 636 (1989) (Marshall, J., dissenting). In requiring that seizures be based on at least some evidence of criminal conduct, 831 F. 2d, at 1419, the Court of Appeals was faithful to the Fourth Amendment principle that law enforcement officers must reasonably suspect a person of criminal activity before they can detain him. Because today’s decision, though limited to its facts, ante, at 11, disobeys this important constitutional command, I dissent.

       The facts in this case were developed at suppression hearings held in the District Court over three separate days. The parties also stipulated to certain facts.

       In an earlier decision, the Court of Appeals also reversed the District Court, but on the basis of different reasoning. 808 F. 2d 1366, vacated, 831 F. 2d 1413 (1987). The Court of Appeals’ second decision was issued after the Government petitioned for rehearing on the ground that the court had erred in considering each of the facts known to the agents separately rather than in terms of the totality of the circumstances.

       Respondent also claims that the agents should have conducted a further inquiry to resolve the inconsistency between the name he gave the airline and the name, “Karl Herman,” under which his telephone number was listed. Brief for Respondent 26. This argument avails respondent nothing; had the agents done further checking, they would have discovered not only that respondent was Herman’s roommate but also that his name was “Sokolow” and not “Kray,” the name listed on his ticket.

       In Royer, the police were aware, inter alia, that (1) Royer was traveling under an assumed name; (2) he paid for his ticket in cash with a number of small bills; (3) he was traveling from Miami to New York; (4) he put only his name and not an address on his checked luggage; and (5) he seemed nervous while walking through Miami airport. 460 U. S., at 493, n. 2, 502 (opinion of White, J.).

       In Reid, the Court held that a DEA agent stopped the defendant without reasonable suspicion. At the time of the stop, the agent knew that (1) the defendant flew into Atlanta from Fort Lauderdale, a source city for cocaine; (2) he arrived early in the morning, when police activity was believed to be at a low ebb; (3) he did not check his luggage; and (4) the defendant and his companion appeared to be attempting to hide the fact that they were together. The Court held that the first three of these facts were not sufficient to supply reasonable suspicion, because they “describe a very large category of presumably innocent travelers,” while the last fact was insufficient on the facts of that case to establish reasonable suspicion. 448 U. S., at 441.

       Agent Kempshall testified that respondent’s behavior “had all the classic aspects of a drug courier.” App. 59. Since 1974, the DEA has trained narcotics officers to identify drug smugglers on the basis of the sort of circumstantial evidence at issue here.

       Even if such profiles had reliable predictive value, their utility would be short lived, for drug couriers will adapt their behavior to sidestep detection from profile-focused officers.

       Nor was Reid a close case: eight Members of the Court found the challenged detention insupportable, five of whom saw fit to dispose of the case by reversing the court below in a per curiam opinion. In a separate concurrence, Justice Powell, joined by Chief Justice Burger and Justice Blackmun, agreed that “the fragmentary facts apparently relied on by the DEA agents” provided “no justification” for Reid’s detention. 448 U. S., at 442, n. 1. Only then-JusTiCE Rehnquist, the author of today’s majority opinion, dissented, on the ground that the police conduct involved did not implicate Reid’s constitutional rights. Id., at 442.

       That Sokolow was, in fact, using an alias was not known to the DEA agents until after they detained him. Thus, it cannot legitimately be considered as a basis for the seizure in this case.

       The majority also contends that it is not relevant that the DEA agents, in forcibly stopping Sokolow rather than simply speaking with him, did not “use the least intrusive means available.” Ante, at 10. On the contrary, the manner in which a search is carried out — and particularly whether law enforcement officers have taken needlessly intrusive steps — is a highly important index of reasonableness under Fourth Amendment doctrine. See, e. g., Winston v. Lee, 470 U. S. 753, 760-761 (1985).


author: Chief Justice Rehnquist Justice Stevens,

text:
    CITY OF DALLAS et al. v. STANGLIN, individually and dba TWILIGHT SKATING RINK
    No. 87-1848.
    Argued March 1, 1989
    Decided April 3, 1989

      Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Black-mun, J., joined, post, p. 28.

      Craig Hopkins argued the cause for petitioners. With him on the briefs were Analeslie Muncy and Kenneth C. Dippel.

      Daniel J. Sheehan, Jr., argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Officers by William I. Thornton, Jr., Frank B. Gummey III, William H. Taube, Roy D. Bates, Robert J. Alfton, James K. Baker, Robert J. Mangier, Neal E. McNeill, Dante R. Pellegrini, Clifford D. Pierce, Jr., Benjamin L. Brown, and Charles S. Rhyne; and for the United States Conference of Mayors et al. by Benna Ruth Solomon.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioner city of Dallas adopted an ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18. Respondent, the owner of one of these “teenage” dance halls, sued to contest the constitutional validity of the ordinance. The Texas Court of Appeals held that the ordinance violated the First Amendment right of persons between the ages of 14 and 18 to associate with persons outside that age group. We now reverse, holding that the First Amendment secures no such right.

In 1985, in response to requests for dance halls open only to teenagers, the city of Dallas authorized the licensing of “Class E” dance halls. The purpose of the ordinance was to provide a place where teenagers could socialize with each other, but not be subject to the potentially detrimental influences of older teenagers and young adults. The provision of the ordinance at issue here, Dallas City Code § 14-8.1 (1985), restricts the ages of admission to Class E dance halls to persons between the ages of 14 and 18. This provision, as enacted, restricted admission to those between 14 and 17, but it was subsequently amended to include 18-year-olds. Parents, guardians, law enforcement, and dance-hall personnel are excepted from the ordinance’s age restriction. The ordinance also limits the hours of operation of Class E dance halls to between 1 p.m. and midnight daily when school is not in session. § 14 — 5(d)(2).

Respondent operates the Twilight Skating Rink in Dallas and obtained a license for a Class E dance hall. He divided the floor of his roller-skating rink into two sections with moveable plastic cones or pylons. On one side of the pylons, persons between the ages of 14 and 18 dance, while on the other side, persons of all ages skate to the same music — usually soul and “funk” music played by a disc jockey. No age or hour restrictions are applicable to the skating rink. Respondent does not serve alcohol on the premises, and security personnel are present. The Twilight does not have a selective admissions policy. It charges between $3.50 and $5 per person for admission to the dance hall and between $2.50 and $5 per person for admission to the skating rink. Most of the patrons are strangers to each other, and the establishment serves as many as 1,000 customers per night.

Respondent sued in the District Court of Dallas County to enjoin enforcement of the age and hour restrictions of the ordinance. He contended that the ordinance violated substantive due process and equal protection under the United States and Texas Constitutions, and that it unconstitutionally infringed the rights of persons between the ages of 14 and 17 (now 18) to associate with persons outside that age bracket. The trial court upheld the ordinance, finding that it was rationally related to the city’s legitimate interest in ensuring the safety and welfare of children.

The Texas Court of Appeals upheld the ordinance’s time restriction, but it struck down the age restriction. 744 S. W. 2d 165 (1987). The Court of Appeals held that the age restriction violated the First Amendment associational rights of minors. To support a restriction on the fundamental right of “social association,” the court said that “the legislative body must show a compelling interest,” and the regulation “must be accomplished by the least restrictive means.” Id., at 168. The court recognized the city’s interest in “protecting] minors from detrimental, corrupting influences,” ibid., but held that the “City’s stated purposes . . . may be achieved in ways that are less intrusive on minors’ freedom to associate,” id., at 169. The Court of Appeals stated that “[a] child’s right of association may not be abridged simply on the premise that he ‘might’ associate with those who would persuade him into bad habits,” and that “neither the activity of dancing per se, nor association of children aged fourteen through eighteen with persons of other ages in the context of dancing renders such children peculiarly vulnerable to the evils that defendant City seeks to prevent.” Ibid. We granted certiorari, 488 U. S. 815 (1988), and now reverse.

The dispositive question in this case is the level of judicial “scrutiny” to be applied to the city’s ordinance. Unless laws “create suspect classifications or impinge upon constitutionally protected rights,” San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 40 (1973), it need only be shown that they bear “some rational relationship to a legitimate state purpose,” id., at 44. Respondent does not contend that dance-hall patrons are a “suspect classification,” but he does urge that the ordinance in question interferes with associational rights of such patrons guaranteed by the First Amendment.

While the First Amendment does not in terms protect a “right of association,” our cases have recognized that it embraces such a right in certain circumstances. In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we noted two different sorts of “freedom of association” that are protected by the United States Constitution:

“Our decisions have referred to constitutionally protected ‘freedom of association’ in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Id., at 617-618.

It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of “intimate human relationships” referred to in Roberts. The Texas Court of Appeals, however, thought that such patrons were engaged in a form of expressive activity that was protected by the First Amendment. We disagree.

The Dallas ordinance restricts attendance at Class E dance halls to minors between the ages of 14 and 18 and certain excepted adults. It thus limits the minors’ ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as “associational” in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dance hall are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the dance hall admits all who are willing to pay the admission fee. There is no suggestion that these patrons “take positions on public questions” or perform any of the other similar activities described in Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U. S. 537, 548 (1987).

The cases cited in Roberts recognize that “freedom of speech” means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons — coming together to engage in recreational dancing — is not protected by the First Amendment. Thus this activity qualifies neither as a form of “intimate association” nor as a form of “expressive association” as those terms were described in Roberts.

Unlike the Court of Appeals, we do not think the Constitution recognizes a generalized right of “social association” that includes chance encounters in dance halls. The Court of Appeals relied, mistakenly we think, on a statement from our opinion in Griswold v. Connecticut, 381 U. S. 479, 483 (1965), that “[t]he right to freely associate is not limited to ‘political’ assemblies, but includes those that ‘pertain to the social, legal, and economic benefit’ of our citizens.” 744 S. W. 2d, at 168, quoting Griswold v. Connecticut, supra, at 483. But the quoted language from Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics.

The Dallas ordinance, therefore, implicates no suspect class and impinges on no constitutionally protected right. The question remaining is whether the classification engaged in by the city survives “rational-basis” scrutiny under the Equal Protection Clause. The city has chosen to impose a rule that separates 14- to 18-year-olds from what may be the corrupting influences of older teenagers and young adults. Ray Couch, an urban planner for the city’s Department of Planning and Development, testified:

“ ‘[0]lder kids [whom the ordinance prohibits from entering Class E dance halls] can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general. . . . And we’re concerned about mixing up these [older] individuals with youngsters that [sic] have not fully matured.’” 744 S. W. 2d, at 168, n. 3.

A Dallas police officer, Wesley Michael, testified that the age restriction was intended to discourage juvenile crime.

Respondent claims that this restriction “has no real connection with the City’s stated interests and objectives.” Brief for Respondent 13. Except for saloons and teenage dance halls, respondent argues, teenagers and adults in Dallas may associate with each other, including at the skating area of the Twilight Skating Rink. Id., at 14. Respondent also states, as did the court below, that the city can achieve its objectives through increased supervision, education, and prosecution of those who corrupt minors. Id., at 15.

We think respondent’s arguments misapprehend the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams, 397 U. S. 471 (1970), in rejecting the claim that Maryland welfare legislation violated the Equal Protection Clause, the Court said:

“[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78.
‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. . . .
“. . . [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Id., at 485-486 (footnote omitted).

We think that similar considerations support the age restriction at issue here. As we said in New Orleans v. Dukes, 427 U. S. 297, 303-304 (1976): “[I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” See also United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 177 (1980). The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dance hall with older persons. See 7 E. McQuillin, Law of Municipal Corporations §24.210 (3d ed. 1981) (“Public dance halls have been regarded as being in that category of businesses and vocations having potential evil consequences”). The city could properly conclude that limiting dance-hall contacts between juveniles and adults would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, and promiscuous sex. It is true that the city allows teenagers and adults to roller-skate together, but skating involves less physical contact than dancing. The differences between the two activities may not be striking, but differentiation need not be striking in order to survive rational-basis scrutiny.

We hold that the Dallas ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for Class E dance halls and the city’s interest in promoting the welfare of teenagers. The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Blackmun joins,

concurring in the judgment.

In my opinion the opportunity to make friends and enjoy the company of other people — in a dance hall or elsewhere— is an aspect of liberty protected by the Fourteenth Amendment. For that reason, I believe the critical issue in this case involves substantive due process rather than the First Amendment right of association. Nonetheless, I agree with the Court that the city has adequately justified the ordinance’s modest impairment of the liberty of teenagers. Indeed, I suspect that the ordinance actually gives teenagers greater opportunity to associate than they would have if the Class E dance-hall provision were invalidated. I therefore join the Court’s judgment.

       Dallas also licenses Class A, B, and C dance halls, which differ in the number of days per week dancing is permitted; Class D is for dance instruction. Persons under 17 must be accompanied by a parent for admission to Class A, B, and C dance halls. Dallas City Code §§ 14-1, 14-8 (1985-1986). A dance-hall license is not needed if the dance is at any of the following locations: a private residence from which the general public is excluded; a place owned by the federal, state, or local government; a public or private elementary school, secondary school, college, or university; a place owned by a religious organization; or a private club. Ibid.

       Section 14-8.1 of the Dallas City Code provides:
      “(a) No person under the age of 14 years or over the age of 18 years may enter a Class E dance hall.
      “(b) A person commits an offense if he is over the age of 18 years and:
      “(1) enters a Class E dance hall; or
      “(2) for the purposes of gaining admittance into a Class E dance hall, he falsely represents himself to be:
      “(A) of an age from 14 years through 18 years;
      “(B) a licensee or an employee of the dance hall;
      “(C) a parent or guardian of a person inside the dance hall;
      “(D) a governmental employee in the performance of his duties.
      “(c) A licensee or an employee of a Class E dance hall commits an offense if he knowingly allows a person to enter or remain on the premises of a dance hall who is:
      “(1) under the age of 14 years; or
      “(2) over the age of 18 years.
      “(d) It is a defense to prosecution under Subsections (b)(1) and (c)(2) that the person is:

        “(1) a licensee or employee of a dance hall;
      “(2) a parent or guardian of a person inside the dance hall; or
      “(3) a governmental employee in the performance of his duties.”

       The Court of Appeals held that respondent had standing to assert the associational rights of the teenage patrons of his establishment. 744 S. W. 2d 165, 168 (1987). That issue has not been raised before us.

       The Court considered similar factors in Prince v. Massachusetts, 321 U. S. 158 (1944), where it upheld, over claims of infringement on religious freedom and equal protection, a statute prohibiting children under 12 from selling newspapers on the street. After noting that the statute would have been invalid if applied to adults, the Court said:
      “The state’s authority over children’s activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. . . . Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state’s police power.” Id., at 168-169 (footnotes omitted).
      See also Bellotti v. Baird, 443 U. S. 622, 635 (1979) (plurality opinion), quoting McKeiver v. Pennsylvania, 403 U. S. 528, 550 (plurality opinion) (“State is entitled to adjust its legal system to account for children’s vulnerability and their need for ‘concern, . . . sympathy, and . . . paternal attention’ ”); Ginsberg v. New York, 390 U. S. 629 (1968) (upholding right of State to prohibit sale of “girlie” magazines to minors).'

       I do not join the Court’s assessment of this case under the Equal Protection Clause. Although the equal protection issue received nominal attention in the trial court, see Pet. for Cert. C-l to C-7, it was neither reviewed by the Texas Court of Appeals nor briefed before us. See 744 S. W. 2d 165 (1987); Pet. for Cert. 3; Brief for Petitioners 4.