No. 03-5554. Argued March 22, 2004–Decided June 21, 2004

Counsel of Record

For Petitioners Hiibel:

James P. Logan

Nevada Public Defender’s Office

Carson City, NV

For Respondents Sixth Judicial

District Court, et al.:

Conrad Hafen

Senior Deputy Attorney General

Las Vegas, NV

Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada’s “stop and identify” statute requires a person detained by an officer under suspicious circumstances to identify himself. The state intermediate appellate court affirmed, rejecting Hiibel’s argument that the state law’s application to his case violated the Fourth and Fifth Amendments. The Nevada Supreme Court affirmed.

Held: Petitioner’s conviction does not violate his Fourth Amendment rights or the Fifth Amendment’s prohibition on self-incrimination. Pp. 3-13.

 (a) State stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. They vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. In Papachristou v. Jacksonville, 405 U. S. 156, 167-171, this Court invalidated a traditional vagrancy law for vagueness because of its broad scope and imprecise terms. The Court recognized similar constitutional limitations in Brown v. Texas, 443 U. S. 47, 52, where it invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds, and in Kolender v. Lawson, 461 U. S. 352, where it invalidated on vagueness grounds California’s modified stop and identify statute that required a suspect to give an officer “credible and reliable ” identification when asked to identify himself, id., at 360. This case begins where those cases left off. Here, the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, Hiibel has not alleged that the Nevada statute is unconstitutionally vague, as in Kolender. This statute is narrower and more precise. In contrast to the “credible and reliable” identification requirement in Kolender, the Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver’s license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs. Pp. 3-6.

(b) The officer’s conduct did not violate Hiibel’s Fourth Amendment rights. Ordinarily, an investigating officer is free to ask a person for identification without implicating the Amendment. INS v. Delgado, 466 U. S. 210, 216. Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34. The Nevada statute is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures because it properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests. See Delaware v. Prouse, 440 U. S. 648, 654. An identity request has an immediate relation to the Terry stop’s purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity. On the other hand, the statute does not alter the nature of the stop itself, changing neither its duration nor its location. Hiibel argues unpersuasively that the statute circumvents the probable-cause requirement by allowing an officer to arrest a person for being suspicious, thereby creating an impermissible risk of arbitrary police conduct. These familiar concerns underlay Kolender, Brown, and Papachristou. They are met by the requirement that a Terry stop be justified at its inception and be “reasonably related in scope to the circumstances which justified” the initial stop. Terry, 392 U. S., at 20. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayes v. Florida, 470 U. S. 811, 817. The request in this case was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the Fourth Amendment. Pp. 6-10.

 (c) Hiibel’s contention that his conviction violates the Fifth Amendment’s prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U. S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U. S. 441, 445. Hiibel’s refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffman v. United States, 341 U. S. 479, 486. It appears he refused to identify himself only because he thought his name was none of the officer’s business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here. 10-13.

118 Nev. 868, 59 P. 2d 1201, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.

LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.

on writ of certiorari to the supreme court of nevada

[June 21, 2004]

Justice Kennedy delivered the opinion of the Court.

The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment.

 I

 The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.

The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.

We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:

 ”1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.

 . . . . .

 ”3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”

Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendments. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P. 3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U. S. 965 (2003).

II

NRS §171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code §15-5-30 (West 2003); Ark. Code Ann. §5-71-213(a)(1) (2004); Colo. Rev. Stat. §16-3-103(1) (2003); Del. Code Ann., Tit. 11, §§1902(a), 1321(6) (2003); Fla. Stat. §856.021(2) (2003); Ga. Code Ann. §16-11-36(b) (2003); Ill. Comp. Stat., ch. 725, §5/107-14 (2004); Kan. Stat. Ann. §22-2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. §84.710(2) (2003); Mont. Code Ann. §46-5-401(2)(a) (2003); Neb. Rev. Stat. §29-829 (2003); N. H. Rev. Stat. Ann. §§594:2 and 644:6 (Lexis 2003); N. M. Stat. Ann. §30-22-3 (2004); N. Y. Crim. Proc. Law §140.50(1) (West 2004); N. D. Cent. Code §29-29-21 (2003); R. I. Gen. Laws §12-7-1 (2003); Utah Code Ann. §77-7-15 (2003); Vt. Stat. Ann., Tit. 24, §1983 (Supp. 2003); Wis. Stat. §968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984).

Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code, §250.6, Comment 4, pp. 392-393 (1980). The provision, originally designated §250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tentative Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.

Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, §2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself … .” 2 W. Hawkins, Pleas of the Crown, ch. 13, §6, p. 130. (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. In Papachristou v. Jacksonville, 405 U. S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id., at 167-171.

The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U. S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U. S. 352 (1983). The California law in Kolender required a suspect to give an officer ” ‘credible and reliable’ ” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in ” ‘virtually unrestrained power to arrest and charge persons with a violation.’ ” Id., at 360 (quoting Lewis v. New Orleans, 415 U. S. 130, 135 (1974) (Powell, J., concurring in result)).

The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender. Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. See 118 Nev., at ___, 59 P. 3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means–a choice, we assume, that the suspect may make–the statute is satisfied and no violation occurs. See id., at ___, 59 P. 3d, at 1206-1207.

III

Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.

Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U. S. 210, 216 (1984). Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Delgado, supra, at 216; United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be ” ‘justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Sharpe, 470 U. S. 675, 682 (1985) (quoting Terry, supra, at 20). For example, the seizure cannot continue for an excessive period of time, see United States v. Place, 462 U. S. 696, 709 (1983), or resemble a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 212 (1979).

Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. See United States v. Hensley, 469 U. S. 221, 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”); Hayes v. Florida, 470 U. S. 811, 816 (1985) (“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information”); Adams v. Williams, 407 U. S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time”).

Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown, 443 U. S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U. S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty, 468 U. S. 420, 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U. S. 436 (1966). In the course of explaining why Terry stops have not been subject to Miranda, the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer, supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop.

We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment. Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name. See NRS §171.123(3) (“Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer”). As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence in Terry as answering the question whether a State can compel a suspect to disclose his name during a Terry stop.

The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Delaware v. Prouse, 440 U. S. 648, 654 (1979). The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, or its location, Dunaway, supra, at 212. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.

Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. Brief for Petitioner 28-33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U. S., at 20. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes, where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” 470 U. S., at 817. It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. Terry, supra, at 20. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment.

 IV

Petitioner further contends that his conviction violates the Fifth Amendment’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U. S. 27, 34-38 (2000).

Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U. S. 201, 210 (1988). See also Hubbell, 530 U. S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.

The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U. S. 591, 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”). A claim of Fifth Amendment privilege must establish

” ‘reasonable ground to apprehend danger to the witness from his being compelled to answer … . [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,–not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ ” Id., at 599-600 (quoting Queen v. Boyes, 1 Best & S. 311, 321 (1861) (Cockburn, C. J.)).

As we stated in Kastigar v. United States, 406 U. S. 441, 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453.

In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. Hoffman v. United States, 341 U. S. 479, 486 (1951). As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.

The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555 (1990) (suggesting that “fact[s] the State could readily establish” may render “any testimony regarding existence or authenticity [of them] insufficiently incriminating”); Cf. California v. Byers, 402 U. S. 424, 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (1990) (opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.

The judgment of the Nevada Supreme Court is

 Affirmed.

 LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.

 on writ of certiorari to the supreme court of nevada

 [June 21, 2004]

 Justice Stevens, dissenting.

 The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime”1–persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not “at the public at large,” but rather “at a highly selective group inherently suspect of criminal activities.” Albertson v. Subversive Activities Control Bd., 382 U. S. 70, 79 (1965).

Under the Nevada law, a member of the targeted class “may not be compelled to answer” any inquiry except a command that he “identify himself.”2 Refusal to identify oneself upon request is punishable as a crime.3 Presumably the statute does not require the detainee to answer any other question because the Nevada Legislature realized that the Fifth Amendment prohibits compelling the target of a criminal investigation to make any other statement. In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment’s guarantee that “[n]o person … shall be compelled in any criminal case to be a witness against himself,” U. S. Const., Amdt. 5,4 is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.

“[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U. S. 436, 467 (1966). It is a “settled principle” that “the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,” but “they have no right to compel them to answer.” Davis v. Mississipi, 394 U. S. 721, 727, n. 6 (1969). The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government’s investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. See Carter v. Kentucky, 450 U. S. 288, 299-300 (1981). The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. See Chavez v. Martinez, 538 U. S. 760, 767-768 (2003). So does an arrested suspect during custodial interrogation in a police station. Miranda, 384 U. S., at 467.

There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment’s protections apply with equal force in the context of Terry stops, see Terry v. Ohio, 392 U. S. 1 (1968), where an officer’s inquiry “must be ‘reasonably related in scope to the justification for [the stop's] initiation.’ ” Berkemer v. McCarty, 468 U. S. 420, 439 (1984) (some internal quotation marks omitted). “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Ibid. See also Terry, 392 U. S., at 34 (White, J., concurring) (“Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest, although it may alert the officer to the need for continued observation”). Given our statements to the effect that citizens are not required to respond to police officers’ questions during a Terry stop, it is no surprise that petitioner assumed, as have we, that he had a right not to disclose his identity.

The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. Although the Court declines to resolve this question, ante, at 10-11, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a “difficult question,” Doe v. United States, 487 U. S. 201, 214-215 (1988), we have stated generally that “[i]t is the ‘extortion of information from the accused,’ the attempt to force him ‘to disclose the contents of his own mind,’ that implicates the Self-Incrimination Clause,” id., at 211 (citations omitted). While “[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege,” id., at 213-214, certain acts and physical evidence fall outside the privilege.5 In all instances, we have afforded Fifth Amendment protection if the disclosure in question was being admitted because of its content rather than some other aspect of the communication.6

Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment’s Confrontation Clause, “[w]hatever else the term ['testimonial'] covers, it applies at a minimum … to police interrogations.” Crawford v. Washington, 541 U. S. ___, ___ (2004) (slip op., at 33). Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.

 Rather than determining whether the communication at issue is testimonial, the Court instead concludes that the State can compel the disclosure of one’s identity because it is not “incriminating.” Ante, at 11. But our cases have afforded Fifth Amendment protection to statements that are “incriminating” in a much broader sense than the Court suggests. It has “long been settled that [the Fifth Amendment's] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U. S. 27, 37 (2000). By “incriminating” we have meant disclosures that “could be used in a criminal prosecution or could lead to other evidence that might be so used,” Kastigar v. United States, 406 U. S. 441, 445 (1972)–communications, in other words, that “would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime,” Hoffman v. United States, 341 U. S. 479, 486 (1951). Thus, “[c]ompelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell, 530 U. S., at 38 (citing Doe, 487 U. S., at 208, n. 6).

Given a proper understanding of the category of “incriminating” communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner’s identity is protected. The Court reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. Ante, at 12-13. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances “reasonably indicate that the person has committed, is committing or is about to commit a crime”?7 If the Court is correct, then petitioner’s refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.

A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell, 530 U. S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.” Ante, at 12.

The officer in this case told petitioner, in the Court’s words, that “he was conducting an investigation and needed to see some identification.” Ante, at 2. As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.

LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.

on writ of certiorari to the supreme court of nevada

[June 21, 2004]

Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.

Notwithstanding the vagrancy statutes to which the majority refers, see ante, at 4-5, this Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop only within circumscribed limits. And one of those limits invalidates laws that compel responses to police questioning.

In Terry v. Ohio, 392 U. S. 1 (1968), the Court considered whether police, in the absence of probable cause, can stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment protects the ” ‘right of every individual to the possession and control of his own person.’ ” Id., at 9 (quoting Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891)). At the same time, it recognized that in certain circumstances, public safety might require a limited “seizure,” or stop, of an individual against his will. The Court consequently set forth conditions circumscribing when and how the police might conduct a Terry stop. They include what has become known as the “reasonable suspicion” standard. 392 U. S., at 20-22. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34.

About 10 years later, the Court, in Brown v. Texas, 443 U. S. 47 (1979), held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. Id., at 53. The Court noted that the trial judge had asked the following: “I’m sure [officers conducting a Terry stop] should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer . . . .” Id., at 54 (Appendix to opinion of the Court) (emphasis in original). The Court referred to Justice White’s Terry concurrence. 443 U. S., at 53, n. 3. And it said that it “need not decide” the matter. Ibid.

Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Berkemer v. McCarty, 468 U. S. 420, 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U. S. 352, 365 (1983) (Brennan, J., concurring) (Terry suspect “must be free to . . . decline to answer the questions put to him”); Illinois v. Wardlow, 528 U. S. 119, 125 (2000) (stating that allowing officers to stop and question a fleeing person “is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning”).

This lengthy history–of concurring opinions, of references, and of clear explicit statements–means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.

There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. See ante, at 1-6 (Stevens, J., dissenting). Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.

Indeed, as the majority points out, a name itself–even if it is not “Killer Bill” or “Rough ‘em up Harry”–will sometimes provide the police with “a link in the chain of evidence needed to convict the individual of a separate offense.” Ante, at 12-13. The majority reserves judgment about whether compulsion is permissible in such instances. Ante, at 13. How then is a police officer in the midst of a Terry stop to distinguish between the majority’s ordinary case and this special case where the majority reserves judgment?

The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry-stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.

 I consequently dissent.

 FOOTNOTES

 Footnote 1

Nev. Rev. Stat. §171.123(1) (2003).

Footnote 2

§171.123(3).

Footnote 3

In this case, petitioner was charged with violating §199.280, which makes it a crime to “willfully resis[t], dela[y] or obstruc[t] a public officer in discharging or attempting to discharge any legal duty of his office.” A violation of that provision is a misdemeanor unless a dangerous weapon is involved.

Footnote 4

The Fifth Amendment’s protection against compelled self-incrimination applies to the States through the Fourteenth Amendment’s Due Process Clause. See Malloy v. Hogan, 378 U. S. 1, 6 (1964).

Footnote 5

A suspect may be made, for example, to provide a blood sample, Schmerber v. California, 384 U. S. 757, 765 (1966), a voice exemplar, United States v. Dionisio, 410 U. S. 1, 7 (1973), or a handwriting sample, Gilbert v. California, 388 U. S. 263, 266-267 (1967).

Footnote 6

See Pennsylvania v. Muniz, 496 U. S. 582, 598-599 (1990) (respondent’s answer to the “birthday question” was protected because the “content of his truthful answer supported an inference that his mental faculties were impaired”); Doe v. United States, 487 U. S. 201, 211, n. 10 (1988) (“The content itself must have testimonial significance”); Fisher v. United States, 425 U. S. 391, 410-411 (1976) (“[H]owever incriminating the contents of the accountant’s workpapers might be, the act of producing them–the only thing which the taxpayer is compelled to do–would not itself involve testimonial self-incrimination”); Gilbert, 388 U. S., at 266-267 (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying characteristic outside its protection”); United States v. Wade, 388 U. S. 218, 223 (1967) (“[I]t deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege”).

Footnote 7

Nev. Rev. Stat. §171.123(1) (2003). The Court suggests that furnishing identification also allows the investigating officer to assess the threat to himself and others. See ante, at 8. But to the extent that officer or public safety is immediately at issue, that concern is sufficiently alleviated by the officer’s ability to perform a limited patdown search for weapons. See Terry v. Ohio, 392 U. S. 1, 25-26 (1968).

The Trial

1937

Franz Kafka

Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested. Every day at eight in the morning he was brought his breakfast by Mrs. Grubach’s cook – Mrs. Grubach was his landlady – but today she didn’t come. That had never happened before. K. waited a little while, looked from his pillow at the old woman who lived opposite and who was watching him with an inquisitiveness quite unusual for her, and finally, both hungry and disconcerted, rang the bell. There was immediately a knock at the door and a man entered. He had never seen the man in this house before. He was slim but firmly built, his clothes were black and close-fitting,with many folds and pockets, buckles and buttons and a belt, all of which gave the impression of being very practical but without making it very clear what they were actually for. “Who are you?” asked K., sitting half upright in his bed. The man, however, ignored the question as if his arrival simply had to be accepted, and merely replied, “You rang?” “Anna should have brought me my breakfast,” said K. He tried towork out who the man actually was, first in silence, just through observation and by thinking about it, but the man didn’t stay still to be looked at for very long. Instead he went over to the door, opened it slightly, and said to someone who was clearly standing immediately behind it, “He wants Anna to bring him his breakfast.” There was a little laughter in the neighbouring room, it was not clear from the sound of it whether there were several people laughing. The strange man could not have learned anything from it that he hadn’t known already, but now he said to K., as if making his report “It is not possible.” “It would be the first time that’s happened,” said K., as he jumped out of bed and quickly pulled on his trousers. “I want to see who that is in the next room, and why it is that Mrs. Grubach has let me be disturbed in this way.” It immediately occurred to him that he needn’t have said this out loud, and that he must to some extent have acknowledged their authority by doing so, but that didn’t seem important to him at the time. That, at least, is how the stranger took it, as he said, “Don’t you think you’d better stay where you are?” “I want neither to stay here nor to be spoken to by you until you’ve introduced yourself.” “I meant it for your own good,” said the stranger and opened the door, this time without being asked. The next room, which K. entered more slowly than he had intended, looked at first glance exactly the same as it had the previous evening. It was Mrs. Grubach’s living room, over-filled with furniture, tablecloths, porcelain and photographs. Perhaps there was a little more space in there than usual today, but if so it was not immediately obvious, especially as the main difference was the presence of a man sitting by the open window with abook from which he now looked up. “You should have stayed in your room! Didn’t Franz tell you?” “And what is it you want, then?” said K., looking back and forth between this new acquaintance and the one named Franz, who had remained in the doorway. Through the open window he noticed the old woman again, who had come close to the window opposite so that she could continue to see everything. She was showing an inquisitiveness that really made it seem like she was going senile. “Iwant to see Mrs. Grubach …,” said K., making a movement as if tearing himself away from the two men – even though they were standing well away from him – and wanted to go. “No,” said the man at the window, who threw his book down on a coffee table and stood up. “You can’t go away when you’re under arrest.” “That’s how it seems,” said K. “And why am I under arrest?” he then asked. “That’s something we’re not allowed to tell you. Go into your room and wait there. Proceedings are underway and you’ll learn about everything all in good time. It’s not really part of my job to be friendly towards you like this, but I hope no-one, apart from Franz, will hear about it, and he’s been more friendly towards you than he should have been, under the rules, himself. If you carry on having as much good luck as you have been with your arresting officers then you can reckon on things going well with you.” K. wanted to sit down, but then he saw that, apart from the chair by the window, there was nowhere anywhere in the room where he could sit. “You’ll get the chance to see for yourself how true all this is,” said Franz and both men then walked up to K. They were significantly bigger than him, especially the second man, who frequently slapped him on the shoulder. The two of them felt K.’s nightshirt, and said he would now have to wear

one that was of much lower quality, but that they would keep the nightshirt along with his other underclothes and return them to him if his case turned out well. “It’s better for you if you give us the things than if you leave them in the storeroom,” they said. “Things have a tendency to go missing in the storeroom, and after a certain amount of time they sell things off, whether the case involved has come to an end or not. And cases like this can last a long time, especially the ones that have been coming up lately. They’d give you the money they got for them, but it wouldn’t be very much as it’s not what they’re offered for them when they sell them that counts, it’s how much they get slipped on the side, and things like that lose their value anyway when they get passed on from hand to hand, year after year.” K. paid hardly any attention to what they were saying, he did not place much value on what he may have still possessed or on who decided what happened to them. It was much more important to him to get a clear understanding of his position, but he could not think clearly while these people were here, the second policeman’s belly – and they could only be policemen – looked friendly enough, sticking out towards him, but when K. looked up and saw his dry, boney face it did not seem to fit with the body. His strong nose twisted to one side as if ignoring K. and sharing an understanding with the other policeman. What sort of people were these? What were they talking about? What office did they belong to? K. was living in a free country, after all, everywhere was at peace, all laws were decent and were upheld, who was it who dared accost him in his own home? He was always inclined to take life as lightly as he could, to cross bridges when he came to them, pay no heed for the future, even when everything seemed under threat. But here that did not seem the right thing to do. He could have taken it all as a joke, a big joke set up by his colleagues at the bank for some unknown reason, or also perhaps because today was his thirtieth birthday, it was all possible of course, maybe all he had to do was laugh in the policemen’s face in some way and they would laugh with him, maybe they were tradesmen from the corner of the street, they looked like they might be – but he was nonetheless determined, ever since he first caught sight of the one called Franz, not to lose any slight advantage he might have had over these people. There was a very slight risk that people would later say he couldn’t understand a joke, but – although he wasn’t normally in the habit of learning from experience – he might also have had a few unimportant occasions in mind when, unlike his more cautious friends, he had acted with no thought at all for what might follow and had been made to suffer for it. He didn’t want that to happen again, not this time at least; if they were play-acting he would act along with them.

He still had time. “Allow me,” he said, and hurried between the two policemen through into his room. “He seems sensible enough,” he heard them say behind him. Once in his room, he quickly pulled open the drawer of his writing desk, everything in it was very tidy but in his agitation he was unable to find the identification documents he was looking for straight away. He finally found his bicycle permit and was about to go back to the policemen with it when it seemed to him too petty, so he carried on searching until he found his birth certificate. Just as he got back in the adjoining room the door on the other side opened and Mrs. Grubach was about to enter. He only saw her for an instant, for as soon as she recognised K. she was clearly embarrassed, asked for forgiveness and disappeared, closing the door behind her very carefully. “Do come in,” K. could have said just then. But now he stood in the middle of the room with his papers in his hand and still looking at the door which did not open again. He stayed like that until he was startled out of it by the shout of the policeman who sat at the little table at the open window and, as K. now saw, was eating his breakfast. “Why didn’t she come in?” he asked. “She’s not allowed to,” said the big policeman. “You’re under arrest, aren’t you.” “But how can I be under arrest? And how come it’s like this?” “Now you’re starting again,” said the policeman, dipping a piece of buttered bread in the honeypot. “We don’t answer questions like that.” “You will have to answer them,” said K. “Here are my identification papers, now show me yours and I certainly want to see the arrest warrant.” “Oh, my God!” said the policeman. “In a position like yours, and you think you can start giving orders, do you? It won’t do you any good to get us on the wrong side, even if you think it will – we’re probably more on your side that anyone else you know!” “That’s true, you know, you’d better believe it,” said Franz, holding a cup of coffee in his hand which he did not lift to his mouth but looked at K. in a way that was probably meant to be full of meaning but could not actually be understood. K. found himself, without intending it, in a mute dialogue with Franz, but then slapped his hand down on his papers and said, “Here are my identity documents.” “And what do you want us to do about it?” replied the big policeman, loudly. “The way you’re carrying on, it’s worse than a child. What is it you want? Do you want to get this great, bloody trial of yours over with quickly by talking about ID and arrest warrants with us? We’re just coppers, that’s all we are. Junior officers like us hardly know one end of an ID card from another, all we’ve got to do with you is keep an eye on you for ten hours a day and get paid for it. That’s all we are. Mind you, what we can do is make sure that the high officials we work for find out just what sort of person it is they’re going to arrest, and why he should be arrested, before they issue the warrant. There’s no mistake there. Our authorities as far as I know, and I only know the lowest grades, don’t go out looking for guilt among the public; it’s the guilt that draws them out, like it says in the law, and they have to send us police officers out. That’s the law. Where d’you think there’d be any mistake there?” “I don’t know this law,” said K. “So much the worse for you, then,” said the policeman. “It’s probably exists only in your heads,” said K., he wanted, in some way, to insinuate his way into the thoughts of the policemen, to re-shape those thoughts to his benefit or to make himself at home there. But the policeman just said dismissively, “You’ll find out when it affects you.” Franz joined in, and said, “Look at this, Willem, he admits he doesn’t know the law and at the same time insists he’s innocent.” “You’re quite right, but we can’t get him to understand a thing,” said the other. K. stopped talking with them; do I, he thought to himself, do I really have to carry on getting tangled up with the chattering of base functionaries like this? – and they admit themselves that they are of the lowest position. They’re talking about things of which they don’t have the slightest understanding, anyway. It’s only because of their stupidity that they’re able to be so sure of themselves. I just need few words with someone of the same social standing as myself and everything will be incomparably clearer, much clearer than a long conversation with these two can make it. He walked up and down the free space in the room a couple of times, across the street he could see the old woman who, now, had pulled an old man, much older than herself, up to the window and had her arms around him. K. had to put an end to this display, “Take me to your superior,” he said. “As soon as he wants to see you. Not before,” said the policeman, the one called Willem. “And now my advice to you,” he added, “is to go into your room, stay calm, and wait and see what’s to be done with you. If you take our advice, you won’t tire yourself out thinking about things to no purpose, you need to pull yourself together as there’s a lot that’s going to required of you. You’ve not behaved towards us the way we deserve after being so good to you, you forget that we, whatever we are, we’re still free men and you’re not, and that’s quite an advantage. But in spite of all that we’re still willing, if you’ve got the money, to go and get you some breakfast from the café over the road.”

Without giving any answer to this offer, K. stood still for some time. Perhaps, if he opened the door of the next room or even the front door, the two of them would not dare to stand in his way, perhaps that would be the simplest way to settle the whole thing, by bringing it to a head. But maybe they would grab him, and if he were thrown down on the ground he would lose all the advantage he, in a certain respect, had over them. So he decided on the more certain solution, the way things would go in the natural course of events, and went back in his room without another word either from him or from the policemen.

He threw himself down on his bed, and from the dressing table he took the nice apple that he had put there the previous evening for his breakfast. Now it was all the breakfast he had and anyway, as he confirmed as soon as he took his first, big bite of it, it was far better than a breakfast he could have had through the good will of the policemen from the dirty café. He felt well and confident, he had failed to go into work at the bank this morning but that could easily be excused because of the relatively high position he held there. Should he really send in his explanation? He wondered about it. If nobody believed him, and in this case that would be understandable, he could bring Mrs. Grubach in as a witness, or even the old pair from across the street, who probably even now were on their way over to the window opposite. It puzzled K., at least it puzzled him looking at it from the policemen’s point of view, that they had made him go into the room and left him alone there, where he had ten different ways of killing himself. At the same time, though, he asked himself, this time looking at it from his own point of view, what reason he could have to do so. Because those two were sitting there in the next room and had taken his breakfast, perhaps? It would have been so pointless to kill himself that, even if he had wanted to, the pointlessness would have made him unable. Maybe, if the policemen had not been so obviously limited in their mental abilities, it could have been supposed that they had come to the same conclusion and saw no danger in leaving him alone because of it. They could watch now, if they wanted, and see how he went over to the cupboard in the wall where he kept a bottle of good schnapps, how he first emptied a glass of it in place of his breakfast and how he then took a second glassful in order to give himself courage, the last one just as a precaution for the unlikely chance it would be needed.

Then he was so startled by a shout to him from the other room that he struck his teeth against the glass. “The supervisor wants to see you!” a voice said. It was only the shout that startled him, this curt, abrupt, military shout, that he would not have expected from the policeman called Franz. In itself, he found the order very welcome. “At last!” he called back, locked the cupboard and, without delay, hurried into the next room. The two policemen were standing there and chased him back into his bedroom as if that were a matter of course. “What d’you think you’re doing?” they cried. “Think you’re going to see the supervisor dressed in just your shirt, do you? He’d see to it you got a right thumping, and us and all!” “Let go of me for God’s sake!” called K., who had already been pushed back as far as his wardrobe, “if you accost me when I’m still in bed you can’t expect to find me in my evening dress.” “That won’t help you,” said the policemen, who always became very quiet, almost sad, when K. began to shout, and in that way confused him or, to some extent, brought him to his senses. “Ridiculous formalities!” he grumbled, as he lifted his coat from the chair and kept it in both his hands for a little while, as if holding it out for the policemen’s inspection. They shook their heads. “It’s got to be a black coat,” they said. At that, K. threw the coat to the floor and said – without knowing even himself what he meant by it – “Well it’s not going to be the main trial, after all.” The policemen laughed, but continued to insist, “It’s got to be a black coat.” “Well that’s alright by me if it makes things go any faster,” said K. He opened the wardrobe himself, spent a long time searching through all the clothes, and chose his best black suit which had a short jacket that had greatly surprised those who knew him, then he also pulled out a fresh shirt and began, carefully, to get dressed. He secretly told himself that he had succeeded in speeding things up by letting the policemen forget to make him have a bath. He watched them to see if they might remember after all, but of course it never occurred to them, although Willem did not forget to send Franz up to the supervisor with the message saying that K. was getting dressed.

Once he was properly dressed, K. had to pass by Willem as he went through the next room into the one beyond, the door of which was already wide open. K. knew very well that this room had recently been let to a typist called ‘Miss Bürstner’. She was in the habit of going out to work very early and coming back home very late, and K. had never exchanged more than a few words of greeting with her. Now, her bedside table had been pulled into the middle of the room to be used as a desk for these proceedings, and the supervisor sat behind it. He had his legs crossed, and had thrown one arm over the backrest of the chair.

In one corner of the room there were three young people looking at the photographs belonging to Miss Bürstner that had been put into a piece of fabric on the wall. Hung up on the handle of the open window was a white blouse. At the window across the street, there was the old pair again, although now their number had increased, as behind them, and far taller than they were, stood a man with an open shirt that showed his chest and a reddish goatee beard which he squeezed and twisted with his fingers. “Josef K.?” asked the supervisor, perhaps merely to attract K.’s attention as he looked round the room. K. nodded. “I daresay you were quite surprised by all that’s been taking place this morning,” said the supervisor as, with both hands, he pushed away the few items on the bedside table – the candle and box of matches, a book and a pin cushion which lay there as if they were things he would need for his own business. “Certainly,” said K., and he began to feel relaxed now that, at last, he stood in front of someone with some sense, someone with whom he would be able to talk about his situation. “Certainly I’m surprised, but I’m not in any way very surprised.” “You’re not very surprised?” asked the supervisor, as he positioned the candle in the middle of the table and the other things in a group around it. “Perhaps you don’t quite understand me,” K. hurriedly pointed out. “What I mean is …” here K. broke off what he was saying and looked round for somewhere to sit. “I may sit down, mayn’t I?” he asked. “That’s not usual,” the supervisor answered. “What I mean is…,” said K. without delaying a second time, “that, yes, I am very surprised but when you’ve been in the world for thirty years already and had to make your own way through everything yourself, which has been my lot, then you become hardened to surprises and don’t take them too hard. Especially not what’s happened today.” “Why especially not what’s happened today?” “I wouldn’t want to say that I see all of this as a joke, you seem to have gone to too much trouble making all these arrangements for that. Everyone in the house must be taking part in it as well as all of you, that would be going beyond what could be a joke. So I don’t want to say that this is a joke.” “Quite right,” said the supervisor, looking to see how many matches were left in the box. “But on the other hand,” K. went on, looking round at everyone there and even wishing he could get the attention of the three who were looking at the photographs, “on the other hand this really can’t be all that important. That follows from the fact that I’ve been indicted, but can’t think of the slightest offence for which I could be indicted. But even that is all beside the point, the main question is: Who is issuing the indictment? What office is conducting this affair? Are you officials? None of you is wearing a uniform, unless what you are wearing” – here he turned towards Franz – “is meant to be a uniform, it’s actually more of a travelling suit. I require a clear answer to all these questions, and I’m quite sure that once things have been made clear we can take our leave of each other on the best of terms.” The supervisor slammed the box of matches down on the table. “You’re making a big mistake,” he said. “These gentlemen and I have got nothing to do with your business, in fact we know almost nothing about you. We could be wearing uniforms as proper and exact as you like and your situation wouldn’t be any the worse for it. As to whether you’re on a charge, I can’t give you any sort of clear answer to that, I don’t even know whether you are or not. You’re under arrest, you’re quite right about that, but I don’t know any more than that. Maybe these officers have been chit-chatting with you, well if they have that’s all it is, chit-chat. I can’t give you an answer to your questions, but I can give you a bit of advice: You’d better think less about us and what’s going to happen to you, and think a bit more about yourself. And stop making all this fuss about your sense of innocence; you don’t make such a bad impression, but with all this fuss you’re damaging it. And you ought to do a bit less talking, too. Almost everything you’ve said so far has been things we could have taken from your behaviour, even if you’d said no more than a few words. And what you have said has not exactly been in your favour.”

K. stared at the supervisor. Was this man, probably younger than he was, lecturing him like a schoolmaster? Was he being punished for his honesty with a telling off? And was he to learn nothing about the reasons for his arrest or those who were arresting him? He became somewhat cross and began to walk up and down. No-one stopped him doing this and he pushed his sleeves back, felt his chest, straightened his hair, went over to the three men, said, “It makes no sense,” at which these three turned round to face him and came towards him with serious expressions. He finally came again to a halt in front of the supervisor’s desk. “State Attorney Hasterer is a good friend of mine,” he said, “can I telephone him?” “Certainly,” said the supervisor, “but I don’t know what the point of that will be, I suppose you must have some private matter you want to discuss with him.” “What the point is?” shouted K., more disconcerted that cross. “Who do you think you are? You want to see some point in it while you’re carrying out something as pointless as it could be? It’s enough to make you cry! These gentlemen first accost me, and now they sit or stand about in here and let me be hauled up in front of you. What point there would be, in telephoning a state attorney when I’m ostensibly under arrest? Very well, I won’t make the telephone call.” “You can call him if you want to,” said the supervisor, stretching his hand out towards the outer room where the telephone was, “please, go on, do make your phone call.” “No, I don’t want to any more,” said K., and went over to the window. Across the street, the people were still there at the window, and it was only now that K. had gone up to his window that they seemed to become uneasy about quietly watching what was going on. The old couple wanted to get up but the man behind them calmed them down. “We’ve got some kind of audience over there,” called K. to the supervisor, quite loudly, as he pointed out with his forefinger. “Go away,” he then called across to them. And the three of them did immediately retreat a few steps, the old pair even found themselves behind the man who then concealed them with the breadth of his body and seemed, going by the movements of his mouth, to be saying something incomprehensible into the distance. They did not disappear entirely, though, but seemed to be waiting for the moment when they could come back to the window without being noticed. “Intrusive, thoughtless people!” said K. as he turned back into the room. The supervisor may have agreed with him, at least K. thought that was what he saw from the corner of his eye. But it was just as possible that he had not even been listening as he had his hand pressed firmly down on the table and seemed to be comparing the length of his fingers. The two policemen were sitting on a chest covered with a coloured blanket, rubbing their knees. The three young people had put their hands on their hips and were looking round aimlessly. Everything was still, like in some office that has been forgotten about. “Now, gentlemen,” called out K., and for a moment it seemed as if he was carrying all of them on his shoulders, “it looks like your business with me is over with. In my opinion, it’s best now to stop wondering about whether you’re proceeding correctly or incorrectly, and to bring the matter to a peaceful close with a mutual handshake. If you are of the same opinion, then please…” and he walked up to the supervisor’s desk and held out his hand to him. The supervisor raised his eyes, bit his lip and looked at K.’s outstretched hand; K still believed the supervisor would do as he suggested. But instead, he stood up, picked up a hard round hat that was laying on Miss Bürstner’s bed and put it carefully onto his head, using both hands as if trying on a new hat. “Everything seems so simple to you, doesn’t it,” he said to K. as he did so, “so you think we should bring the matter to a peaceful close, do you. No, no, that won’t do. Mind you, on the other hand I certainly wouldn’t want you to think there’s no hope for you. No, why should you think that? You’re simply under arrest, nothing more than that. That’s what I had to tell you, that’s what I’ve done and now I’ve seen how you’ve taken it. That’s enough for one day and we can take our leave of each other, for the time being at least. I expect you’ll want to go in to the bank now, won’t you.” “In to the bank?” asked K., “I thought I was under arrest.” K. said this with a certain amount of defiance as, although his handshake had not been accepted, he was feeling more independent of all these people, especially since the supervisor had stood up. He was playing with them. If they left, he had decided he would run after them and offer to let them arrest him. That’s why he even repeated, “How can I go in to the bank when I’m under arrest?” “I see you’ve misunderstood me,” said the supervisor who was already at the door. “It’s true that you’re under arrest, but that shouldn’t stop you from carrying out your job. And there shouldn’t be anything to stop you carrying on with your usual life.” “In that case it’s not too bad, being under arrest,” said K., and went up close to the supervisor. “I never meant it should be anything else,” he replied. “It hardly seems to have been necessary to notify me of the arrest in that case,” said K., and went even closer. The others had also come closer. All of them had gathered together into a narrow space by the door. “That was my duty,” said the supervisor. “A silly duty,” said K., unyielding. “Maybe so,” replied the supervisor, “only don’t let’s waste our time talking on like this. I had assumed you’d be wanting to go to the bank. As you’re paying close attention to every word I’ll add this: I’m not forcing you to go to the bank, I’d just assumed you wanted to. And to make things easier for you, and to let you get to the bank with as little fuss as possible I’ve put these three gentlemen, colleagues of yours, at your disposal.” “What’s that?” exclaimed K., and looked at the three in astonishment. He could only remember seeing them in their group by the photographs, but these characterless, anaemic young people were indeed officials from his bank, not colleagues of his, that was putting it too high and it showed a gap in the omniscience of the supervisor, but they were nonetheless junior members of staff at the bank. How could K. have failed to see that? How occupied he must have been with the supervisor and the policemen not to have recognised these three! Rabensteiner, with his stiff demeanour and swinging hands, Kullich, with his blonde hair and deep-set eyes, and Kaminer, with his involuntary grin caused by chronic muscle spasms. “Good morning,” said K. after a while, extending his hand to the gentlemen as they bowed correctly to him. “I didn’t recognise you at all. So, we’ll go into work now, shall we?” The gentlemen laughed and nodded enthusiastically, as if that was what they had been waiting for all the time, except that K. had left his hat in his room so they all dashed, one after another, into the room to fetch it, which caused a certain amount of embarrassment. K. stood where he was and watched them through the open double doorway, the last to go, of course, was the apathetic Rabensteiner who had broken into no more than an elegant trot. Kaminer got to the hat and K., as he often had to do at the bank, forcibly reminded himself that the grin was not deliberate, that he in fact wasn’t able to grin deliberately. At that moment Mrs. Grubach opened the door from the hallway into the living room where all the people were. She did not seem to feel guilty about anything at all, and K., as often before, looked down at the belt of her apron which, for no reason, cut so deeply into her hefty body. Once downstairs, K., with his watch in his hand, decided to take a taxi – he had already been delayed by half an hour and there was no need to make the delay any longer. Kaminer ran to the corner to summon it, and the two others were making obvious efforts to keep K. diverted when Kullich pointed to the doorway of the house on the other side of the street where the large man with the blonde goatee beard appeared and, a little embarrassed at first at letting himself be seen in his full height, stepped back to the wall and leant against it. The old couple were probably still on the stairs. K. was cross with Kullich for pointing out this man whom he had already seen himself, in fact whom he had been expecting. “Don’t look at him!” he snapped, without noticing how odd it was to speak to free men in this way. But there was no explanation needed anyway as just then the taxi arrived, they sat inside and set off. Inside the taxi, K. remembered that he had not noticed the supervisor and the policemen leaving – the supervisor had stopped him noticing the three bank staff and now the three bank staff had stopped him noticing the supervisor. This showed that K. was not very attentive, and he resolved to watch himself more carefully in this respect. Nonetheless, he gave it no thought as he twisted himself round and leant over onto the rear shelf of the car to catch sight of the supervisor and the policemen if he could. But he turned back round straight away and leant comfortably into the corner of the taxi without even having made the effort to see anyone. Although it did not seem like it, now was just the time when he needed some encouragement, but the gentlemen seemed tired just then, Rabensteiner looked out of the car to the right, Kullich to the left and only Kaminer was there with his grin at K.’s service. It would have been inhumane to make fun of that.

That spring, whenever possible, K. usually spent his evenings after work – he usually stayed in the office until nine o’clock – with a short walk, either by himself or in the company of some of the bank officials, and then he would go into a pub where he would sit at the regulars’ table with mostly older men until eleven. There were, however, also exceptions to this habit, times, for instance, when K. was invited by the bank’s manager (whom he greatly respected for his industry and trustworthiness) to go with him for a ride in his car or to eat dinner with him at his large house. K. would also go, once a week, to see a girl called Elsa who worked as a waitress in a wine bar through the night until late in the morning. During the daytime she only received visitors while still in bed.

That evening, though, – the day had passed quickly with a lot of hard work and many respectful and friendly birthday greetings – K. wanted to go straight home. Each time he had any small break from the day’s work he considered, without knowing exactly what he had in mind, that Mrs. Grubach’s flat seemed to have been put into great disarray by the events of that morning, and that it was up to him to put it back into order. Once order had been restored, every trace of those events would have been erased and everything would take its previous course once more. In particular, there was nothing to fear from the three bank officials, they had immersed themselves back into their paperwork and there was no alteration to be seen in them. K. had called each of them, separately or all together, into his office that day for no other reason than to observe them; he was always satisfied and had always been able to let them go again.

At half past nine that evening, when he arrived back in front of the building where he lived, he met a young lad in the doorway who was standing there, his legs apart and smoking a pipe. “Who are you?” immediately asked K., bringing his face close to the lad’s, as it was hard to see in the half light of the landing. “I’m the landlord’s son, sir,” answered the lad, taking the pipe from his mouth and stepping to one side. “The landlord’s son?” asked K., and impatiently knocked on the ground with his stick. “Did you want anything, sir? Would you like me to fetch my father?” “No, no,” said K., there was something forgiving in his voice, as if the boy had harmed him in some way and he was excusing him. “It’s alright,” he said then, and went on, but before going up the stairs he turned round once more.

He could have gone directly to his room, but as he wanted to speak with Mrs. Grubach he went straight to her door and knocked. She was sat at the table with a knitted stocking and a pile of old stockings in front of her. K. apologised, a little embarrassed at coming so late, but Mrs. Grubach was very friendly and did not want to hear any apology, she was always ready to speak to him, he knew very well that he was her best and her favourite tenant. K. looked round the room, it looked exactly as it usually did, the breakfast dishes, which had been on the table by the window that morning, had already been cleared away. “A woman’s hands will do many things when no-one’s looking,” he thought, he might himself have smashed all the dishes on the spot but certainly would not have been able to carry it all out. He looked at Mrs. Grubach with some gratitude. “Why are you working so late?” he asked. They were now both sitting at the table, and K. now and then sank his hands into the pile of stockings. “There’s a lot of work to do,” she said, “during the day I belong to the tenants; if I’m to sort out my own things there are only the evenings left to me.” “I fear I may have caused you some exceptional work today.” “How do you mean, Mr. K.?” she asked, becoming more interested and leaving her work in her lap. “I mean the men who were here this morning.” “Oh, I see,” she said, and went peacefully back to what she was doing, “that was no trouble, not especially.” K. looked on in silence as she took up the knitted stocking once more. She seems surprised at my mentioning it, he thought, she seems to think it’s improper for me to mention it. All the more important for me to do so. An old woman is the only person I can speak about it with. “But it must have caused some work for you,” he said then, “but it won’t happen again.” “No, it can’t happen again,” she agreed, and smiled at K. in a way that was almost pained. “Do you mean that seriously?” asked K. “Yes,” she said, more gently, “but the important thing is you mustn’t take it too hard. There are so many awful things happening in the world! As you’re being so honest with me, Mr. K., I can admit to you that I listened to a little of what was going on from behind the door, and that those two policemen told me one or two things as well. It’s all to do with your happiness, and that’s something that’s quite close to my heart, perhaps more than it should be as I am, after all, only your landlady. Anyway, so I heard one or two things but I can’t really say that it’s about anything very serious. No. You have been arrested, but it’s not in the same way as when they arrest a thief. If you’re arrested in the same way as a thief, then it’s bad, but an arrest like this … . It seems to me that it’s something very complicated – forgive me if I’m saying something stupid – something very complicated that I don’t understand, but something that you don’t really need to understand anyway.”

“There’s nothing stupid about what you’ve said, Mrs. Grubach, or at least I partly agree with you, only, the way I judge the whole thing is harsher than yours, and think it’s not only not something complicated but simply a fuss about nothing. I was just caught unawares, that’s what happened. If I had got up as soon as I was awake without letting myself get confused because Anna wasn’t there, if I’d got up and paid no regard to anyone who might have been in my way and come straight to you, if I’d done something like having my breakfast in the kitchen as an exception, asked you to bring my clothes from my room, in short, if I had behaved sensibly then nothing more would have happened, everything that was waiting to happen would have been stifled. People are so often unprepared. In the bank, for example, I am well prepared, nothing of this sort could possibly happen to me there, I have my own assistant there, there are telephones for internal and external calls in front of me on the desk, I continually receive visits from people, representatives, officials, but besides that, and most importantly, I’m always occupied with my work, that’s to say I’m always alert, it would even be a pleasure for me to find myself faced with something of that sort. But now it’s over with, and I didn’t really even want to talk about it any more, only I wanted to hear what you, as a sensible woman, thought about it all, and I’m very glad to hear that we’re in agreement. But now you must give me your hand, an agreement of this sort needs to be confirmed with a handshake.”

Will she shake hands with me? The supervisor didn’t shake hands, he thought, and looked at the woman differently from before, examining her. She stood up, as he had also stood up, and was a little self-conscious, she hadn’t been able to understand everything that K. said. As a result of this self consciousness she said something that she certainly did not intend and certainly was not appropriate. “Don’t take it so hard, Mr. K.,” she said, with tears in her voice and also, of course, forgetting the handshake. “I didn’t know I was taking it hard,” said K., feeling suddenly tired and seeing that if this woman did agree with him it was of very little value.

Before going out the door he asked, “Is Miss Bürstner home?” “No,” said Mrs. Grubach, smiling as she gave this simple piece of information, saying something sensible at last. “She’s at the theatre. Did you want to see her? Should I give her a message?” “I, er, I just wanted to have a few words with her.” “I’m afraid I don’t know when she’s coming in; she usually gets back late when she’s been to the theatre.” “It really doesn’t matter,” said K. his head hanging as he turned to the door to leave, “I just wanted to give her my apology for taking over her room today.” “There’s no need for that, Mr. K., you’re too conscientious, the young lady doesn’t know anything about it, she hasn’t been home since early this morning and everything’s been tidied up again, you can see for yourself.” And she opened the door to Miss Bürstner’s room. “Thank you, I’ll take your word for it,” said K, but went nonetheless over to the open door. The moon shone quietly into the unlit room. As far as could be seen, everything was indeed in its place, not even the blouse was hanging on the window handle. The pillows on the bed looked remarkably plump as they lay half in the moonlight. “Miss Bürstner often comes home late,” said K., looking at Mrs. Grubach as if that were her responsibility. “That’s how young people are!” said Mrs. Grubach to excuse herself. “Of course, of course,” said K., “but it can be taken too far.” “Yes, it can be,” said Mrs. Grubach, “you’re so right, Mr. K. Perhaps it is in this case. I certainly wouldn’t want to say anything nasty about Miss Bürstner, she is a good, sweet girl, friendly, tidy, punctual, works hard, I appreciate all that very much, but one thing is true, she ought to have more pride, be a bit less forthcoming. Twice this month already, in the street over the way, I’ve seen her with a different gentleman. I really don’t like saying this, you’re the only one I’ve said this to, Mr. K., I swear to God, but I’m going to have no choice but to have a few words with Miss Bürstner about it myself. And it’s not the only thing about her that I’m worried about.” “Mrs. Grubach, you are on quite the wrong track,” said K., so angry that he was hardly able to hide it, “and you have moreover misunderstood what I was saying about Miss Bürstner, that is not what I meant. In fact I warn you quite directly not to say anything to her, you are quite mistaken, I know Miss Bürstner very well and there is no truth at all in what you say. And what’s more, perhaps I’m going to far, I don’t want to get in your way, say to her whatever you see fit. Good night.” “Mr. K.,” said Mrs. Grubach as if asking him for something and hurrying to his door which he had already opened, “I don’t want to speak to Miss Bürstner at all, not yet, of course I’ll continue to keep an eye on her but you’re the only one I’ve told what I know. And it is, after all something that everyone who lets rooms has to do if she’s to keep the house decent, that’s all I’m trying to do.” “Decent!” called out K. through the crack in the door, “if you want to keep the house decent you’ll first have to give me notice.” Then he slammed the door shut, there was a gentle knocking to which he paid no more attention.

He did not feel at all like going to bed, so he decided to stay up, and this would also give him the chance to find out when Miss Bürstner would arrive home. Perhaps it would also still be possible, even if a little inappropriate, to have a few words with her. As he lay there by the window, pressing his hands to his tired eyes, he even thought for a moment that he might punish Mrs. Grubach by persuading Miss Bürstner to give in her notice at the same time as he would. But he immediately realised that that would be shockingly excessive, and there would even be the suspicion that he was moving house because of the incidents of that morning. Nothing would have been more nonsensical and, above all, more pointless and contemptible.

When he had become tired of looking out onto the empty street he slightly opened the door to the living room so that he could see anyone who entered the flat from where he was and lay down on the couch. He lay there, quietly smoking a cigar, until about eleven o’clock. He wasn’t able to hold out longer than that, and went a little way into the hallway as if in that way he could make Miss Bürstner arrive sooner. He had no particular desire for her, he could not even remember what she looked like, but now he wanted to speak to her and it irritated him that her late arrival home meant this day would be full of unease and disorder right to its very end. It was also her fault that he had not had any dinner that evening and that he had been unable to visit Elsa as he had intended. He could still make up for both of those things, though, if he went to the wine bar where Elsa worked. He wanted to do so even later, after the discussion with Miss Bürstner.

It was already gone half past eleven when someone could be heard in the stairway. K., who had been lost in his thoughts in the hallway, walking up and down loudly as if it were his own room, fled behind his door. Miss Bürstner had arrived. Shivering, she pulled a silk shawl over her slender shoulders as she locked the door. The next moment she would certainly go into her room, where K. ought not to intrude in the middle of the night; that meant he would have to speak to her now, but, unfortunately, he had not put the electric light on in his room so that when he stepped out of the dark it would give the impression of being an attack and would certainly, at the very least, have been quite alarming. There was no time to lose, and in his helplessness he whispered through the crack of the door, “Miss Bürstner.” It sounded like he was pleading with her, not calling to her. “Is there someone there?” asked Miss Bürstner, looking round with her eyes wide open. “It’s me,” said K. and came out. “Oh, Mr. K.!” said Miss Bürstner with a smile. “Good Evening,” and offered him her hand. “I wanted to have a word with you, if you would allow me?” “Now?” asked Miss Bürstner, “does it have to be now? It is a little odd, isn’t it?” “I’ve been waiting for you since nine o’clock.” “Well, I was at the theatre, I didn’t know anything about you waiting for me.” “The reason I need to speak to you only came up today” “I see, well I don’t see why not, I suppose, apart from being so tired I could drop. Come into my room for a few minutes then. We certainly can’t talk out here, we’d wake everyone up and I think that would be more unpleasant for us than for them. Wait here till I’ve put the light on in my room, and then turn the light down out here.” K. did as he was told, and then even waited until Miss Bürstner came out of her room and quietly invited him, once more, to come in. “Sit down,” she said, indicating the ottoman, while she herself remained standing by the bedpost despite the tiredness she had spoken of; she did not even take off her hat, which was small but decorated with an abundance of flowers. “What is it you wanted, then? I’m really quite curious.” She gently crossed her legs.

“I expect you’ll say,” K. began, “that the matter really isn’t all that urgent and we don’t need to talk about it right now, but …” “I never listen to introductions,” said Miss Bürstner. “That makes my job so much easier,” said K. “This morning, to some extent through my fault, your room was made a little untidy, this happened because of people I did not know and against my will but, as I said, because of my fault; I wanted to apologise for it.” “My room?” asked Miss Bürstner, and instead of looking round the room scrutinised K. “It is true,” said K., and now, for the first time, they looked each other in the eyes, “there’s no point in saying exactly how this came about.” “But that’s the interesting thing about it,” said Miss Bürstner. “No,” said K. “Well then,” said Miss Bürstner, “I don’t want to force my way into any secrets, if you insist that it’s of no interest I won’t insist. I’m quite happy to forgive you for it, as you ask, especially as I can’t see anything at all that’s been left untidy.” With her hand laid flat on her lower hip, she made a tour around the room. At the mat where the photographs were she stopped. “Look at this!” she cried. “My photographs really have been put in the wrong places. Oh, that’s horrible. Someone really has been in my room without permission.” K. nodded, and quietly cursed Kaminer who worked at his bank and who was always active doing things that had neither use nor purpose. “It is odd,” said Miss Bürstner, “that I’m forced to forbid you to do something that you ought to have forbidden yourself to do, namely to come into my room when I’m not here.” “But I did explain to you,” said K., and went over to join her by the photographs, “that it wasn’t me who interfered with your photographs; but as you don’t believe me I’ll have to admit that the investigating committee brought along three bank employees with them, one of them must have touched your photographs and as soon as I get the chance I’ll ask to have him dismissed from the bank. Yes, there was an investigating committee here,” added K., as the young lady was looking at him enquiringly. “Because of you?” she asked. “Yes,” answered K. “No!” the lady cried with a laugh. “Yes, they were,” said K., “you believe that I’m innocent then, do you?” “Well now, innocent …” said the lady, “I don’t want to start making any pronouncements that might have serious consequences, I don’t really know you after all, it means they’re dealing with a serious criminal if they send an investigating committee straight out to get him. But you’re not in custody now – at least I take it you’ve not escaped from prison considering that you seem quite calm – so you can’t have committed any crime of that sort.” “Yes,” said K., “but it might be that the investigating committee could see that I’m innocent, or not so guilty as had been supposed.” “Yes, that’s certainly a possibility,” said Miss Bürstner, who seemed very interested. “Listen,” said K., “you don’t have much experience in legal matters.” “No, that’s true, I don’t,” said Miss Bürstner, “and I’ve often regretted it, as I’d like to know everything and I’m very interested in legal matters. There’s something peculiarly attractive about the law, isn’t there? But I’ll certainly be perfecting my knowledge in this area, as next month I start work in a legal office.” “That’s very good,” said K., “that means you’ll be able to give me some help with my trial.” “That could well be,” said Miss Bürstner, “why not? I like to make use of what I know.” “I mean it quite seriously,” said K., “or at least, half seriously, as you do. This affair is too petty to call in a lawyer, but I could make good use of someone who could give me advice.” “Yes, but if I’m to give you advice I’ll have to know what it’s all about,” said Miss Bürstner. “That’s exactly the problem,” said K., “I don’t know that myself.” “So you have been making fun of me, then,” said Miss Bürstner exceedingly disappointed, “you really ought not to try something like that on at this time of night.” And she stepped away from the photographs where they had stood so long together. “Miss Bürstner, no,” said K., “I’m not making fun of you. Please believe me! I’ve already told you everything I know. More than I know, in fact, as it actually wasn’t even an investigating committee, that’s just what I called them because I don’t know what else to call them. There was no cross questioning at all, I was merely arrested, but by a committee.” Miss Bürstner sat on the ottoman and laughed again. “What was it like then?” she asked. “It was terrible” said K., although his mind was no longer on the subject, he had become totally absorbed by Miss Bürstner’s gaze who was supporting her chin on one hand – the elbow rested on the cushion of the ottoman – and slowly stroking her hip with the other. “That’s too vague,” said Miss Bürstner. “What’s too vague?” asked K. Then he remembered himself and asked, “Would you like me to show you what it was like?” He wanted to move in some way but did not want to leave. “I’m already tired,” said Miss Bürstner. “You arrived back so late,” said K. “Now you’ve started telling me off. Well I suppose I deserve it as I shouldn’t have let you in here in the first place, and it turns out there wasn’t even any point.” “Oh, there was a point, you’ll see now how important a point it was,” said K. “May I move this table away from your bedside and put it here?” “What do you think you’re doing?” said Miss Bürstner. “Of course you can’t!” “In that case I can’t show you,” said K., quite upset, as if Miss Bürstner had committed some incomprehensible offence against him. “Alright then, if you need it to show what you mean, just take the bedside table then,” said Miss Bürstner, and after a short pause added in a weak voice, “I’m so tired I’m allowing more than I ought to.” K. put the little table in the middle of the room and sat down behind it. “You have to get a proper idea of where the people were situated, it is very interesting. I’m the supervisor, sitting over there on the chest are two policemen, standing next to the photographs there are three young people. Hanging on the handle of the window is a white blouse – I just mention that by the way. And now it begins. Ah yes, I’m forgetting myself, the most important person of all, so I’m standing here in front of the table. The supervisor is sitting extremely comfortably with his legs crossed and his arm hanging over the backrest here like some layabout. And now it really does begin. The supervisor calls out as if he had to wake me up, in fact he shouts at me, I’m afraid, if I’m to make it clear to you, I’ll have to shout as well, and it’s nothing more than my name that he shouts out.” Miss Bürstner, laughing as she listened to him, laid her forefinger on her mouth so that K. would not shout, but it was too late. K. was too engrossed in his role and slowly called out, “Josef K.!”. It was not as loud as he had threatened, but nonetheless, once he had suddenly called it out, the cry seemed gradually to spread itself all round the room.

There was a series of loud, curt and regular knocks at the door of the adjoining room. Miss Bürstner went pale and laid her hand on her heart. K. was especially startled, as for a moment he had been quite unable to think of anything other than the events of that morning and the girl for whom he was performing them. He had hardly pulled himself together when he jumped over to Miss Bürstner and took her hand. “Don’t be afraid,” he whispered, “I’ll put everything right. But who can it be? It’s only the living room next door, nobody sleeps in there.” “Yes they do,” whispered Miss Bürstner into K.’s ear, “a nephew of Mrs. Grubach’s, an captain in the army, has been sleeping there since yesterday. There’s no other room free. I’d forgotten about it too. Why did you have to shout like that? You’ve made me quite upset.”

“There is no reason for it,” said K., and, now as she sank back onto the cushion, kissed her forehead. “Go away, go away,” she said, hurriedly sitting back up, “get out of here, go, what is it you want, he’s listening at the door he can hear everything. You’re causing me so much trouble!” “I won’t go,” said K., “until you’ve calmed down a bit. Come over into the other corner of the room, he won’t be able to hear us there.” She let him lead her there. “Don’t forget,” he said, “although this might be unpleasant for you you’re not in any real danger. You know how much esteem Mrs. Grubach has for me, she’s the one who will make all the decisions in this, especially as the captain is her nephew, but she believes everything I say without question. What’s more, she has borrowed a large sum of money from me and that makes her dependent on me. I will confirm whatever you say to explain our being here together, however inappropriate it might be, and I guarantee to make sure that Mrs. Grubach will not only say she believes the explanation in public but will believe it truly and sincerely. You will have no need to consider me in any way. If you wish to let it be known that I have attacked you then Mrs. Grubach will be informed of such and she will believe it without even losing her trust in me, that’s how much respect she has for me.” Miss Bürstner looked at the floor in front of her, quiet and a little sunk in on herself. “Why would Mrs. Grubach not believe that I’ve attacked you?” added K. He looked at her hair in front of him, parted, bunched down, reddish and firmly held in place. He thought she would look up at him, but without changing her manner she said, “Forgive me, but it was the suddenness of the knocking that startled me so much, not so much what the consequences of the captain being here might be. It was all so quiet after you’d shouted, and then there was the knocking, that’s was made me so shocked, and I was sitting right by the door, the knocking was right next to me. Thank you for your suggestions, but I won’t accept them. I can bear the responsibility for anything that happens in my room myself, and I can do so with anyone. I’m surprised you don’t realise just how insulting your suggestions are and what they imply about me, although I certainly acknowledge your good intentions. But now, please go, leave me alone, I need you to go now even more than I did earlier. The couple of minutes you asked for have grown into half an hour, more than half an hour now.” K. took hold of her hand, and then of her wrist, “You’re not cross with me, though?” he said. She pulled her hand away and answered, “No, no, I’m never cross with anyone.” He grasped her wrist once more, she tolerated it now and, in that way, lead him to the door. He had fully intended to leave. But when he reached the door he came to a halt as if he hadn’t expected to find a door there, Miss Bürstner made use of that moment to get herself free, open the door, slip out into the hallway and gently say to K. from there, “Now, come along, please. Look,” she pointed to the captain’s door, from under which there was a light shining, “he’s put a light on and he’s laughing at us.” “Alright, I’m coming,” said K., moved forward, took hold of her, kissed her on the mouth and then over her whole face like a thirsty animal lapping with its tongue when it eventually finds water. He finally kissed her on her neck and her throat and left his lips pressed there for a long time. He did not look up until there was a noise from the captain’s room. “I’ll go now,” he said, he wanted to address Miss Bürstner by her Christian name, but did not know it. She gave him a tired nod, offered him her hand to kiss as she turned away as if she did not know what she was doing, and went back into her room with her head bowed. A short while later, K. was lying in his bed. He very soon went to sleep, but before he did he thought a little while about his behaviour, he was satisfied with it but felt some surprise that he was not more satisfied; he was seriously worried about Miss Bürstner because of the captain.

“The Tanner Lectures on Human Values”, delivered at Stanford University, October 10 and 16, 1979.

I

The title sounds pretentious, I know. But the reason for that is precisely its own excuse. Since the nineteenth century, Western thought has never stopped labouring at the task of criticising the role of reason – or the lack of reason – in political structures. It’s therefore perfectly unfitting to undertake such a vast project once again. However, so many previous attempts are a warrant that every new venture will be just about as successful as the former ones – and in any case, probably just as fortunate.

Under such a banner, mine is the embarrassment of one who has only sketches and uncompletable drafts to propose. Philosophy gave up trying to offset the impotence of scientific reason long ago; it no longer tries to complete its edifice.

One of the Enlightenment’s tasks was to multiply reason’s political powers. But the men of the nineteenth century soon started wondering whether reason weren’t getting too powerful in our societies. They began to worry about a relationship they confusedly suspected between a rationalisation-prone society and certain threats to the individual and his liberties, to the species and its survival.

In other words, since Kant, the role of philosophy has been to prevent reason going beyond the limits of what is given in experience; but from the same moment– that is, from the development of modern states and political management of society – the role of philosophy has also been to keep watch over the excessive powers of political rationality – which is rather a promising life expectancy.

Everybody is aware of such banal facts. But that they are banal does not mean they don’t exist. What we have to do with banal facts is to discover – or try to discover – which specific and perhaps original problems are connected with them.

The relationship between rationalisation and the excesses of political power is evident. And we should not need to wait for bureaucracy or concentration camps to recognize the existence of such relations. But the problem is: what to do with such an evident fact ?

Shall we ‘try’ reason? To my mind, nothing would be more sterile. First, because the field has nothing to do with guilt or innocence. Second, because it’s senseless to refer to ‘reason’ as the contrary entity to non-reason. Last, because such a trial would trap us into playing the arbitrary and boring part of either the rationalist or the irrationalist.

Shall we investigate this kind of rationalism which seems to be specific to our modern culture and which originates in Enlightenment? I think that that was the way of some of the members of the Frankfurter Schule. My purpose is not to begin a discussion of their works – they are most important and valuable. I would suggest another way of investigating the links between rationalisation and power:

It may be wise not to take as a whole the rationalisation of society or of culture, but to analyse this process in several fields, each of them grounded in a fundamental experience: madness, illness, death, crime, sexuality, etc.

I think that the word ‘rationalisation’ is a dangerous one. The main problem when people try to rationalise something is not to investigate whether or not they conform to principles of rationality, but to discover which kind of rationality they are using.

Even if the Enlightenment has been a very important phase in our history, and in the development of political technology, I think we have to refer to much more remote processes if we want to understand how we have been trapped in our own history.

This was my ‘ligne de conduite’ in my previous work: analyse the relations between experiences like madness, death, crime, sexuality, and several technologies of power. What I am working on now is the problem of individuality – or, I should say, selfidentity as referred to the problem of ‘individualising power’.

Everyone knows that in European societies political power has evolved towards more and more centralised forms. Historians have been studying this organisation of the state, with its administration and bureaucracy, for dozens of years.

I’d like to suggest in these two lectures the possibility of analysing another kind of transformation in such power relationships. This transformation is, perhaps, less celebrated. But I think that it is also important, mainly for modern societies. Apparently this evolution seems antagonistic to the evolution towards a centralised state. What I mean in fact is the development of power techniques oriented towards individuals and intended to rule them in a continuous and permanent way. If the state is the political form of a centralised and centralising power, let us call pastorship the individualising power.

My purpose this evening is to outline the origin of this pastoral modality of power, or at least some aspects of its ancient history. And in the next lecture, I’ll try to show how this pastorship happened to combine with its opposite, the state.

The idea of the deity, or the king, or the leader, as a shepherd followed by a flock of sheep wasn’t familiar to the Greeks and Romans. There were exceptions, I know – early ones in Homeric literature, later ones in certain texts of the Lower Empire. I’ll come back to them later. Roughly speaking, we can say that the metaphor of the flock didn’t occur in great Greek or Roman political literature.

This is not the case in ancient Oriental societies: Egypt, Assyria, Judaea. Pharaoh was an Egyptian shepherd. Indeed, he ritually received the herdsman’s crook on his coronation day; and the term ‘shepherd of men’ was one of the Babylonian monarch’s titles. But God was also a shepherd leading men to their grazing ground and ensuring them food. An Egyptian hymn invoked Ra this way: “O Ra that keepest watch when all men sleep, Thou who seekest what is good for thy cattle . . . .” The association between God and King is easily made, since both assume the same role: the flock they watch over is the same; the shepherd-king is entrusted with the great divine shepherd’s creatures. An Assyrian invocation to the king ran like this: “Illustrious companion of pastures, Thou who carest for thy land and feedest it, shepherd of all abundance.”

But, as we know, it was the Hebrews who developed and intensified the pastoral theme – with nevertheless a highly peculiar characteristic: God, and God only, is his people’s shepherd. With just one positive exception: David, as the founder of the monarchy, is the only one to be referred to as a shepherd. God gave him the task of assembling a flock.

There are negative exceptions, too: wicked kings are consistently compared to bad shepherds; they disperse the flock, let it die of thirst, shear it solely for profit’s sake. Jahweh is the one and only true shepherd. He guides his own people in person, aided only by his prophets. As the Psalms say: “Like a flock/hast Thou led Thy people, by Moses’ and by Aaron’s hand.” Of course I can treat neither the historical problems pertaining to the origin of this comparison nor its evolution throughout Jewish thought. I just want to show a few themes typical of pastoral power. I’d like to point out the contrast with Greek political thought, and to show how important these themes became in Christian thought and institutions later on.

The shepherd wields power over a flock rather than over a land. It’s probably much more complex than that, but, broadly speaking, the relation between the deity, the land, and men differs from that of the Greeks. Their gods owned the land, and this primary possession determined the relationship between men and gods. On the contrary, it’s the Shepherd-God’s relationship with his flock that is primary and fundamental here. God gives, or promises, his flock a land.

The shepherd gathers together, guides, and leads his flock. The idea that the political leader was to quiet any hostilities within the city and make unity reign over conflict is undoubtedly present in Greek thought. But what the shepherd gathers together is dispersed individuals. They gather together on hearing his voice: “I’ll whistle and will gather them together.” Conversely, the shepherd only has to disappear for the flock to be scattered. In other words, the shepherd’s immediate presence and direct action cause the flock to exist. Once the good Greek lawgiver, like Solon, has resolved any conflicts, what he leaves behind him is a strong city with laws enabling it to endure without him.

The shepherd’s role is to ensure the salvation of his flock. The Greeks said also that the deity saved the city; they never stopped declaring that the competent leader is a helmsman warding his ship away from the rocks. But the way the shepherd saves his flock is quite different. It’s not only a matter of saving them all, all together, when danger comes nigh. It’s a matter of constant, individualised, and final kindness. Constant kindness, for the shepherd ensures his flock’s food; every day he attends to their thirst and hunger. The Greek god was asked to provide a fruitful land and abundant crops. He wasn’t asked to foster a flock day by day. And individualised kindness, too, for the shepherd sees that all the sheep, each and every one of them, is fed and saved. Later Hebrew literature, especially, laid the emphasis on such individually kindly power: a rabbinical commentary on Exodus explains why Jahweh chose Moses to shepherd his people: he had left his flock to go and search for one lost sheep.

Last and not least, it’s final kindness. The shepherd has a target for his flock. It must either be led to good grazing ground or brought back to the fold.

Yet another difference lies in the idea that wielding power is a ‘duty’. The Greek leader had naturally to make decisions in the interest of all; he would have been a bad leader had he preferred his personal interest. But his duty was a glorious one: even if in war he had to give up his life, such a sacrifice was offset by something extremely precious: immortality. He never lost. By way of contrast, shepherdly kindness is much closer to ‘devotedness’. Everything the shepherd does is geared to the good of his flock. That’s his constant concern. When they sleep, he keeps watch. The theme of keeping watch is important. It brings out two aspects of the shepherd’s devotedness. First, he acts, he works, he puts himself out, for those he nourishes and who are asleep. Second, he watches over them. He pays attention to them all and scans each one of them. He’s got to know his flock as a whole, and in detail. Not only must he know where good pastures are, the seasons’ laws and the order of things; he must also know each one’s particular needs. Once again, a rabbinical commentary on Exodus describes Moses’ qualities as a shepherd this way: he would send each sheep in turn to graze – first, the youngest, for them to browse on the tenderest sward; then the older ones; and last the oldest, who were capable of browsing on the roughest grass. The shepherd’s power implies individual attention paid to each member of the flock.

These are just themes that Hebraic texts associate with the metaphors of the Shepherd-God and his flock of people. In no way do I claim that that is effectively how political power was wielded in Hebrew society before the fall of Jerusalem. I do not even claim that such a conception of political power is in any way coherent.

They’re just themes. Paradoxical, even contradictory, ones. Christianity was to give them considerable importance, both in the Middle Ages and in modern times. Among all the societies in history, ours – I mean, those that came into being at the end of Antiquity on the Western side of the European continent – have perhaps been the most aggressive and the most conquering; they have been capable of the most stupefying violence, against themselves as well as against others. They invented a great many different political forms. They profoundly altered their legal structures several times. It must be kept in mind that they alone evolved a strange technology of power treating the vast majority of men as a flock with a few as shepherds. They thus established between them a series of complex, continuous, and paradoxical relationships.

This is undoubtedly something singular in the course of history. Clearly, the development of ‘pastoral technology’ in the management of men profoundly disrupted the structures of ancient society.

*****************

So as to better explain the importance of this disruption, I’d like to briefly return to what I was saying about the Greeks. I can see the objections liable to be made.

One is that the Homeric poems use the shepherd metaphor to refer to the kings. In the Iliad and the Odyssey, the expression ποιμήυ λαώυ crops up several times. It qualifies the leaders, highlighting the grandeur of their power. Moreover, it’s a ritual title, common in even late Indo-European literature. In Beowulf, the king is still regarded as a shepherd. But there is nothing really surprising in the fact that the same title, as in the Assyrian texts, is to be found in archaic epic poems.

The problem arises rather as to Greek thought: There is at least one category of texts where references to shepherd models are made: the Pythagorean ones. The metaphor of the herdsman appears in the Fragments of Archytas, quoted by Stobeus. The word υόμος (the law) is connected with the word νυομεύς (shepherd) : the shepherd shares out, the law apportions. Then Zeus is called Νόμιος and Νέμειος because he gives his sheep food. And, finally, the magistrate must be Φιλάυθρωπος, i.e., devoid of selfishness. He must be full of zeal and solicitude, like a shepherd.

Grube, the German editor of Archytas’ Fragments, says that this proves a Hebrew influence unique in Greek literature. Other commentators, such as Delatte, say that the comparison between gods, magistrates, and shepherds was common in Greece. It is therefore not to be dwelt upon.

I shall restrict myself to political literature. The results of the enquiry are clear: the political metaphor of the shepherd occurs neither in Isocrates, nor in Demosthenes, nor in Aristotle. This is rather surprising when one reflects that in his Areopagiticus, Isocrates insists on the magistrates’ duties; he stresses the need for them to be devoted and to show concern for young people. Yet not a word as to any shepherd.

By contrast, Plato often speaks of the shepherd-magistrate. He mentions the idea in Critias, The Republic, and Laws. He thrashes it out in The Statesman. In the former, the shepherd theme is rather subordinate. Sometimes, those happy days when mankind was governed directly by the gods and grazed on abundant pastures are evoked (Critias) , Sometimes, the magistrates’ necessary virtue – as contrasted with Thrasymachos’ vice, is what is insisted upon (The Republic). And sometimes, the problem is to define the subordinate magistrates’ role: indeed, they, just as the watchdogs, have to obey “those at the top of the scale” (Laws).

But in The Statesman pastoral power is the central problem and it is treated at length. Can the city’s decision-maker, can the commander, be defined as a sort of shepherd ?

Plato’s analysis is well known. To solve this question he uses the division method. A distinction is drawn between the man who conveys orders to inanimate things (e.g., the architect), and the man who gives orders to animals; between the man who gives orders to isolated animals (like a yoke of oxen) and he who gives orders to flocks; and he who gives orders to animal flocks, and he who commands human flocks. And there we have the political leader: a shepherd of men.

But this first division remains unsatisfactory. It has to be pushed further. The method opposing men to all the other animals isn’t a good one. And so the dialogue starts all over again. A whole series of distinctions is established: between wild animals and tame ones; those that live in water, and those that live on land; those with horns, and those without; between cleft- and plain-hoofed animals; between those capable and incapable of mutual reproduction. And the dialogue wanders astray with these never-ending subdivisions.

So, what do the initial development of the dialogue and its subsequent failure show? That the division method can prove nothing at all when it isn’t managed correctly. It also shows that the idea of analysing political power as the relationship between a shepherd and his animals was probably rather a controversial one at the time. Indeed, it’s the first assumption to cross the interlocutors’ minds when seeking to discover the essence of the politician. Was it a commonplace at the time? Or was Plato rather discussing one of the Pythagorean themes? The absence of the shepherd metaphor in other contemporary political texts seems to tip the scale towards the second hypothesis. But we can probably leave the discussion open.

My personal enquiry bears upon how Plato impugns the theme in the rest of the dialogue. He does so first by means of methodological arguments and then by means of the celebrated myth of the world revolving round its spindle.

The methodological arguments are extremely interesting. Whether the king is a sort of shepherd or not can be told, not by deciding which different species can form a flock, but by analysing what the shepherd does.

What is characteristic of his task? First, the shepherd is alone at the head of his flock. Second, his job is to supply his cattle with food; to care for them when they are sick; to play them music to get them together, and guide them; to arrange their intercourse with a view to the finest offspring. So we do find the typical shepherd-metaphor themes of Oriental texts.

And what’s the king’s task in regard to all this? Like the shepherd, he is alone at the head of the city. But, for the rest, who provides mankind with food? The king? No. The farmer, the baker do. Who looks after men when they are sick? The king? No. The physician. And who guides them with music? The gymnast – not the king. And so, many citizens could quite legitimately claim the title ‘shepherd of men’. Just as the human flock’s shepherd has many rivals, so has the politician. Consequently, if we want to find out what the politician really and essentially is, we must sift it out from ‘the surrounding flood’, thereby demonstrating in what ways he isn’t a shepherd.

Plato therefore resorts to the myth of the world revolving round its axis in two successive and contrary motions.

In a first phase, each animal species belonged to a flock led by a Genius-Shepherd. The human flock was led by the deity itself. It could lavishly avail itself of the fruits of the earth; it needed no abode; and after Death, men came back to life. A crucial sentence adds: “The deity being their shepherd, mankind needed no political constitution.”

In a second phase, the world turned in the opposite direction. The gods were no longer men’s shepherds; they had to look after themselves. For they had been given fire. What would the politician’s role then be? Would he become the shepherd in the gods’ stead? Not at all. His job was to weave a strong fabric for the city. Being a politician didn’t mean feeding, nursing, and breeding off spring, but binding: binding different virtues; binding contrary temperaments (either impetuous or moderate), using the ‘shuttle’ of popular opinion. The royal art of ruling consisted in gathering lives together “into a community based upon concord and friendship,’ and so he wove “the finest of fabrics.” The entire population, “slaves and free men alike, were mantled in its folds.”

The Statesman therefore seems to be classical antiquity’s most systematic reflexion on the theme of the pastorate which was later to become so important in the Christian West. That we are discussing it seems to prove that a perhaps initially Oriental theme was important enough in Plato’s day to deserve investigation, but we stress the fact that it was impugned.

Not impugned entirely, however. Plato did admit that the physician, the farmer, the gymnast, and the pedagogue acted as shepherds. But he refused to get them involved with the politician’s activity. He said so explicitly: how would the politician ever find the time to come and sit by each person, feed him, give him concerts, and care for him when sick ? Only a god in a Golden Age could ever act like that; or again, like a physician or pedagogue, be responsible for the lives and development of a few individuals. But, situated between the two – the gods and the swains – the men who hold political power are not to be shepherds. Their task doesn’t consist in fostering the life of a group of individuals. It consists in forming and assuring the city’s unity. In short, the political problem is that of the relation between the one and the many in the framework of the city and its citizens. The pastoral problem concerns the lives of individuals.

All this seems very remote, perhaps. The reason for my insisting on these ancient texts is that they show us how early this problem – or rather, this series of problems – arose. They span the entirety of Western history. They are still highly important for contemporary society. They deal with the relations between political power at work within the state as a legal framework of unity, and a power we can call ‘pastoral’, whose role is to constantly ensure, sustain, and improve the lives of each and every one.

The well-known ‘welfare state problem’ does not only bring the needs or the new governmental techniques of today’s world to light. It must be recognised for what it is: one of the extremely numerous reappearances of the tricky adjustment between political power wielded over legal subjects and pastoral power wielded over live individuals.

I have obviously no intention whatsoever of recounting the evolution of pastoral power throughout Christianity. The immense problems this would raise can easily be imagined: from doctrinal problems, such as Christ’s denomination as ‘the good shepherd’, right up to institutional ones, such as parochial organisation, or the way pastoral responsibilities were shared between priests and bishops.

All I want to do is bring to light two or three aspects I regard as important for the evolution of pastorship, i.e., the technology of power.

First of all, let us examine the theoretical elaboration of the theme in ancient Christian literature: Chrysostom, Cyprian, Ambrose, Jerome, and, for monastic life, Cassian or Benedict. The Hebrew themes are considerably altered in at least four ways:

First, with regard to responsibility. We saw that the shepherd was to assume responsibility for the destiny of the whole flock and of each and every sheep. In the Christian conception, the shepherd must render an account – not only of each sheep, but of all their actions, all the good or evil they are liable to do, all that happens to them.

Moreover, between each sheep and its shepherd Christianity conceives a complex exchange and circulation of sins and merits. The sheep’s sin is also imputable to the shepherd. He’ll have to render an account of it at the Last Judgement. Conversely, by helping his flock to find salvation, the shepherd will also find his own. But by saving his sheep, he lays himself open to getting lost; so if he wants to save himself, he must needs run the risk of losing himself for others. If he does get lost, it is the flock that will incur the greatest danger. But let’s leave all these paradoxes aside. My aim was just to underline the force and complexity of the moral ties binding the shepherd to each member of his flock. And what I especially wanted to underline was that such ties not only concerned individuals’ lives, but the details of their actions as well.

The second important alteration concerns the problem of obedience. In the Hebrew conception, God being a shepherd, the flock following him complies to his will, to his law. Christianity, on the other hand, conceived the shepherd-sheep relationship as one of individual and complete dependence. This is undoubtedly one of the points at which Christian pastorship radically diverged from Greek thought. If a Greek had to obey, he did so because it was the law, or the will of the city. If he did happen to follow the will of someone in particular (a physician, an orator, a pedagogue), then that person had rationally persuaded him to do so. And it had to be for a strictly determined aim: to be cured, to acquire a skill, to make the best choice.

In Christianity, the tie with the shepherd is an individual one. It is personal submission to him. His will is done, not because it is consistent with the law, and not just as far as it is consistent with it, but, principally, because it is his will. In Cassian’s Coenobiticul Institutions, there are many edifying anecdotes in which the monk finds salvation by carrying out the absurdest of his superior’s orders. Obedience is a virtue. This means that it is not, as for the Greeks, a provisional means to an end, but rather an end in itself. It is a permanent state; the sheep must permanently submit to their pastors: subditi. As Saint Benedict says, monks do not live according to their own free will; their wish is to be under the abbot’s command : ambulantes alieno judicio et imperio. Greek Christianity named this state of obedience άπάθεια.. The evolution of the word’s meaning is significant. In Greek philosophy, άπάθεια denotes the control that the individual, thanks to the exercise of reason, can exert over his passions. In Christian thought, πάθος is willpower exerted over oneself, for oneself. Απάθεια delivers us from such wilfulness.

Christian pastorship implies a peculiar type of knowledge between the pastor and each of his sheep.

This knowledge is particular. It individualizes. It isn’t enough to know the state of the flock. That of each sheep must also be known. The theme existed long before there was Christian pastorship, but it was considerably amplified in three different ways: the shepherd must be informed as to the material needs of each member of the flock and provide for them when necessary. He must know what is going on, what each of them does – his public sins. Last and not least, he must know what goes on in the soul of each one, that is, his secret sins, his progress on the road to sainthood.

In order to ensure this individual knowledge, Christianity appropriated two essential instruments at work in the Hellenistic world: self-examination and the guidance of conscience. It took them over, but not without altering them considerably.

It is well known that self-examination was widespread among the Pythagoreans, the Stoics, and the Epicureans as a means of daily taking stock of the good or evil performed in regard to one’s duties. One’s progress on the way to perfection, i.e., self-mastery and the domination of one’s passions, could thus be measured. The guidance of conscience was also predominant in certain cultured circles, but as advice given – and sometimes paid for – in particularly difficult circumstances: in mourning, or when one was suffering a setback.

Christian pastorship closely associated these two practices. On one hand, conscience-guiding constituted a constant bind : the sheep didn’t let itself be led only to come through any rough passage victoriously, it let itself be led every second. Being guided was a state and you were fatally lost if you tried to escape it. The ever-quoted phrase runs like this: he who suffers not guidance withers away like a dead leaf. As for self-examination, its aim was not to close self-awareness in upon itself, but to enable it to open up entirely to its director – to unveil to him the depths of the soul.

There are a great many first-century ascetic and monastic texts concerning the link between guidance and self-examination that show how crucial these techniques were for Christianity and how complex they had already become. What I would like to emphasise is that they delineate the emergence of a very strange phenomenon in Greco-Roman civilisation, that is, the organisation of a link between total obedience, knowledge of oneself, and confession to someone else.

There is another transformation – maybe the most important. All those Christian techniques of examination, confession, guidance, obedience, have an aim: to get individuals to work at their own ‘mortification’ in this world. Mortification is not death, of course, but it is a renunciation of this world and of oneself: a kind of everyday death. A death which is supposed to provide life in another world. This is not the first time we see the shepherd theme associated with death; but here it is other than in the Greek idea of political power. It is not a sacrifice for the city; Christian mortification is a kind of relation from oneself to oneself. It is a part, a constitutive part of the Christian self-identity.

We can say that Christian pastorship has introduced a game that neither the Greeks nor the Hebrews imagined. A strange game whose elements are life, death, truth, obedience, individuals, self-identity; a game which seems to have nothing to do with the game of the city surviving through the sacrifice of the citizens. Our societies proved to be really demonic since they happened to combine those two games – the city / citizen game and the shepherd / flock game – in what we call the modern states.

As you may notice, what I have been trying to do this evening is not to solve a problem but to suggest a way to approach a problem. This problem is similar to those I have been working on since my first book about insanity and mental illness. As I told you previously, this problem deals with the relations between experiences (like madness, illness, transgression of laws, sexuality, self-identity) knowledge (like psychiatry, medicine, criminology, sexology, psychology), and power (such as the power which is wielded in psychiatric and penal institutions, and in all other institutions which deal with individual control).

Our civilisation has developed the most complex system of knowledge, the most sophisticated structures of power: what has this kind of knowledge, this type of power made of us? In what way are those fundamental experiences of madness, suffering, death, crime, desire, individuality connected, even if we are not aware of it, with knowledge and power? I am sure I’ll never get the answer; but that does not mean that we don’t have to ask the question.

II

I have tried to show how primitive Christianity shaped the idea of a pastoral influence continuously exerting itself on individuals and through the demonstration of their particular truth. And I have tried to show how this idea of pastoral power was foreign to Greek thought despite a certain number of borrowings such as practical self-examination and the guidance of conscience.

I would like at this time, leaping across many centuries, to describe another episode which has been in itself particularly important in the history of this government of individuals by their own verity.

This instance concerns the formation of the state in the modern sense of the word. If I make this historical connection it is obviously not in order to suggest that the aspect of pastoral power disappeared during the ten great centuries of Christian Europe, Catholic and Roman, but it seems to me that this period, contrary to what one might expect, has not been that of the triumphant pastorate. And that is true for several reasons: some are of an economic nature – the pastorate of souls is an especially urban experience, difficult to reconcile with the poor and extensive rural economy at the beginning of the Middle Ages. The other reasons are of a cultural nature: the pastorate is a complicated technique which demands a certain level of culture, not only on the part of the pastor but also among his flock. Other reasons relate to the sociopolitical structure. Feudality developed between individuals a tissue of personal bonds of an altogether different type than the pastorate.

I do not wish to say that the idea of a pastoral government of men disappeared entirely in the medieval church. It has, indeed, remained and one can even say that it has shown great vitality. Two series of facts tend to prove this. First, the reforms which had been made in the Church itself, especially in the monastic orders – the different reforms operating successively inside existing monasteries – had the goal of restoring the rigor of pastoral order among the monks themselves. As for the newly created orders – Dominican and Franciscan – essentially they proposed to perform pastoral work among the faithful. The Church tried ceaselessly during successive crises to regain its pastoral functions. But there is more. In the population itself one sees all during the Middle Ages the development of a long series of struggles whose object was pastoral power. Critics of the Church which fails in its obligations reject its hierarchical structure, look for the more or less spontaneous forms of community in which the flock could find the shepherd it needed. This search for pastoral expression took on numerous aspects, at times extremely violent struggles as was the case for the Vaudois, sometimes peaceful quests as among the Freres de la Vie community. Sometimes it stirred very extensive movements such as the Hussites, sometimes it fermented limited groups like the Amis de Dieu de l’Oberland. It happened that these movements were close to heresy, as among the Beghards, at times stirring orthodox movements which dwelt within the bosom of the Church (like that of the Italian Oratorians in the fifteenth century).

I raise all of this in a very allusive manner in order to emphasise that if the pastorate was not instituted as an effective, practical government of men during the Middle Ages, it has been a permanent concern and a stake in constant struggles. There was across the entire period of the Middle Ages a yearning to arrange pastoral relations among men and this aspiration affected both the mystical tide and the great millenarian dreams.

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Of course, I don’t intend to treat here the problem of how states are formed. Nor do I intend to go into the different economic, social, and political processes from which they stem. Neither do I want to analyse the different institutions or mechanisms with which states equipped themselves in order to ensure their survival. I’d just like to give some fragmentary indications as to something midway between the state as a type of political organisation and its mechanisms, viz., the type of rationality implemented in the exercise of state power.

I mentioned this in my first lecture. Rather than wonder whether aberrant state power is due to excessive rationalism or irrationalism, I think it would be more appropriate to pin down the specific type of political rationality the state produced.

After all, at least in this respect, political practices resemble scientific ones: it’s not ‘reason in general’ that is implemented, but always a very specific type of rationality. The striking thing is that the rationality of state power was reflective and perfectly aware of its specificity. It was not tucked away in spontaneous, blind practices. It was not brought to light by some retrospective analysis. It was formulated especially in two sets of doctrine: the reason of state and the theory of police. These two phrases soon acquired narrow and pejorative meanings, I know. But for the 150 or 200 years during which modern states were formed, their meaning was much broader than now.

The doctrine of reason of state attempted to define how the principles and methods of state government differed, say, from the way God governed the world, the father his family, or a superior his community.

The doctrine of the police defines the nature of the objects of the state’s rational activity; it defines the nature of the aims it pursues, the general form of the instruments involved.

So, what I’d like to speak about today is the system of rationality. But first, there are two preliminaries:

(1) Meinecke having published a most important book on reason of state, I’ll speak mainly of the policing theory.

(2) Germany and Italy underwent the greatest difficulties in getting established as states, and they produced the greatest number of reflexions on reason of state and the police. I’ll often refer to the Italian and German texts.

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Let’s begin with reason of state. Here are a few definitions:

BOTERO: “A perfect knowledge of the means through which states form, strengthen themselves, endure, and grow.”

PALAZZO (Discourse on Government and True Reason of State, 1606) : “A rule or art enabling us to discover how to establish peace and order within the Republic.”

CHEMNITZ (De Ratione Status, 1647) : “A certain political consideration required for all public matters, councils, and projects, whose only aim is the state’s preservation, expansion, and felicity; to which end, the easiest and promptest means are to be employed.”

Let me consider certain features these definitions have in common.

Reason of state is regarded as an ‘art’, that is, a technique conforming to certain rules. These rules do not simply pertain to customs or traditions, but to knowledge – rational knowledge. Nowadays, the expression reason of state evokes ‘arbitrariness’ or ‘violence’. But at the time, what people had in mind was a rationality specific to the art of governing states.

From where does this specific art of government draw its rationale? The answer to this question provokes the scandal of nascent political thought. And yet it’s very simple: the art of governing is rational, if reflexion causes it to observe the nature of what is governed – here, the state.

Now, to state such a platitude is to break with a simultaneously Christian and judiciary tradition, a tradition which claimed that government was essentially just. It respected a whole system of laws: human laws; the law of nature; divine law.

There is a quite significant text by St. Thomas on these points. He recalls that “art, in its field, must imitate what nature carries out in its own”; it is only reasonable under that condition. The king’s government of his kingdom must imitate God’s government of nature; or again, the soul’s government of the body. The king must found cities just as God created the world; just as the soul gives form to the body. The king must also lead men towards their finality, just as God does for natural beings, or as the soul does, when directing the body. And what is man’s finality? What’s good for the body? No; he’d need only a physician, not a king. Wealth? No; a steward would suffice. Truth? Not even that; for only a teacher would be needed. Man needs someone capable of opening up the way to heavenly bliss through his conformity, here on earth, to what is honesturn.

As we can see, the model for the art of government is that of God imposing his laws upon his creatures. St. Thomas’s model for rational government is not a political one, whereas what the sixteenth and seventeenth centuries seek under the denomination ‘reason of state’ are principles capable of guiding an actual government. They aren’t concerned with nature and its laws in general. They’re concerned with what the state is; what its exigencies are.

And so we can understand the religious scandal aroused by such a type of research. It explains why reason of state was assimilated to atheism. In France, in particular, the expression generated in a political context was commonly associated with ‘atheist’.

Reason of state is also opposed to another tradition. In The Prince, Machiavelli’s problem is to decide how a province or territory acquired through inheritance or by conquest can be held against its internal or external rivals. Machiavelli’s entire analysis is aimed at defining what keeps up or reinforces the link between prince and state, whereas the problem posed by reason of state is that of the very existence and nature of the state itself. This is why the theoreticians of reason of state tried to stay aloof from Machiavelli; he had a bad reputation and they couldn’t recognize their own problem in his. Conversely, those opposed to reason of state tried to impair this new art of governing, denouncing it as Machiavelli’s legacy. However, despite these confused quarrels a century after The Prince had been written, reason of state marks the emergence of an extremely – albeit only partly – different type of rationality from Machiavelli’s.

The aim of such an art of governing is precisely not to reinforce the power a prince can wield over his domain. Its aim is to reinforce the state itself. This is one of the most characteristic features of all the definitions that the sixteenth and seventeenth centuries put forward. Rational government is this, so to speak: given the nature of the state, it can hold down its enemies for an indeterminate length of time. It can only do so if it increases its own strength. And its enemies do likewise. The state whose only concern would be to hold out would most certainly come to disaster. This idea is a very important one. It is bound up with a new historical outlook. Indeed, it implies that states are realities which must needs hold out for an indefinite length of historical time – and in a disputed geographical area.

Finally, we can see that reason of state, understood as rational government able to increase the state’s strength in accordance with itself presupposes the constitution of a certain type of knowledge. Government is only possible if the strength of the state is known; it can thus be sustained. The state’s capacity, and the means to enlarge it, must be known. The strength and capacities of the other states must also be known. Indeed, the governed state must hold out against the others. Government therefore entails more than just implementing general principles of reason, wisdom, and prudence. Knowledge is necessary; concrete, precise, and measured knowledge as to the state’s strength. The art of governing, characteristic of reason of state, is intimately bound up with the development of what was then called either political statistics, or arithmetic; that is, the knowledge of different states’ respective forces. Such knowledge was indispensable for correct government. Briefly speaking, then: reason of state is not an art of government according to divine, natural, or human laws. It doesn’t have to respect the general order of the world. It’s government in accordance with the state’s strength. It’s government whose aim is to increase this strength within an extensive and competitive framework.

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So what the seventeenth- and eighteenth-century authors understand by ‘the police’ is very different from what we put under the term. It would be worth studying why these authors are mostly Italians and Germans, but whatever! What they understand by ‘police’ isn’t an institution or mechanism functioning within the state, but a governmental technology peculiar to the state; domains, techniques, targets where the state intervenes.

To be clear and simple, I will exemplify what I’m saying with a text which is both utopian and a project. It’s one of the first utopia-programmes for a policed state. Turquet de Mayenne drew it up and presented it in 1611 to the Dutch States General. In his book Science in the Government of Louis XIV, J. King draws attention to the importance of this strange work. Its title is Aristo- Democrutic Monarchy; that’s enough to show what is important in the author’s eyes: not so much choosing between these different types of constitution as their mixture in view to a vital end, viz., the state. Turquet also calls it the City, the Republic, or yet again, the Police.

Here is the organisation Turquet proposes. Four grand officials rank beside the king. One is in charge of Justice; another, of the Army; the third, of the Exchecquer, i.e., the king’s taxes and revenues; the fourth is in charge of the police. It seems that this officer’s role was to have been mainly a moral one. According to Turquet, he was to foster among the people “modesty, charity, loyalty, industriousness, friendly cooperation, honesty.” We recognize the traditional idea that the subject’s virtue ensures the kingdom’s good management. But, when we come down to the details, the outlook is somewhat different.

Turquet suggests that in each province, there should be boards keeping law and order. There should be two that see to people; the other two see to things. The first board, the one pertaining to people, was to see to the positive, active, productive aspects of life. In other words, it was concerned with education; determining each one’s tastes and aptitudes; the choosing of occupations – useful ones: each person over the age of twenty-five had to be enrolled on a register noting his occupation. Those not usefully employed were regarded as the dregs of society.

The second board was to see to the negative aspects of life: the poor (widows, orphans, the aged) requiring help; the unemployed; those whose activities required financial aid (no interest was to be charged) ; public health: diseases, epidemics; and accidents such as fire and flood.

One of the boards concerned with things was to specialise in commodities and manufactured goods. It was to indicate what was to be produced, and how; it was also to control markets and trading. The fourth board would see to the ‘demesne’, i.e., the territory, space: private property, legacies, donations, sales were to be controlled; manorial rights were to be reformed; roads, rivers, public buildings, and forests would also be seen to.

In many features, the text is akin to the political utopias which were so numerous at the time. But it is also contemporary with the great theoretical discussions on reason of state and the administrative organisation of monarchies. It is highly representative of what the epoch considered a traditionally governed state’s tasks to be.

What does this text demonstrate?

The ‘police’ appears as an administration heading the state, together with the judiciary, the army, and the exchecquer. True. Yet in fact, it embraces everything else. Turquet says so: “It branches out into all of the people’s conditions, everything they do or undertake. Its field comprises justice, finance, and the army.”

The police includes everything. But from an extremely particular point of view. Men and things are envisioned as to their relationships: men’s coexistence on a territory; their relationships as to property; what they produce; what is exchanged on the market. It also considers how they live, the diseases and accidents which can befall them. What the police sees to is a live, active, productive man. Turquet employs a remarkable expression: “The police’s true object is man.”

Such intervention in men’s activities could well be qualified as totalitarian. What are the aims pursued? They fall into two categories. First, the police has to do with everything providing the city with adornment, form, and splendour. Splendour denotes not only the beauty of a state ordered to perfection; but also its strength, its vigour. The police therefore ensures and highlights the state’s vigour. Second, the police’s other purpose is to foster working and trading relations between men, as well as aid and mutual help. There again, the word Turquet uses is important: the police must ensure ‘communication’ among men, in the broad sense of the word. Otherwise, men wouldn’t be able to live; or their lives would be precarious, poverty-stricken, and perpetually threatened. And here, we can make out what is, I think, an important idea. As a form of rational intervention wielding political power over men, the role of the police is to supply them with a little extra life; and by so doing, supply the state with a little extra strength. This is done by controlling ‘communication’, i.e., the common activities of individuals (work, production, exchange, accommodation). You’ll object: but that’s only the utopia of some obscure author. You can hardly deduce any significant consequences from it! But I say: Turquet’s book is but one example of a huge literature circulating in most European countries of the day. The fact that it is over-simple and yet very detailed brings out all the better the characteristics that could be recognized elsewhere. Above all, I’d say that such ideas were not stillborn. They spread all through the seventeenth and eighteenth centuries, either as applied policies (such as cameralism or mercantilism), or as subjects to be taught (the German Polizeiwissenschaft; don’t let’s forget that this was the title under which the science of administration was taught in Germany).

These are the two perspectives that I’d like, not to study, but at least to suggest. First I’ll refer to a French administrative compendium, then to a German textbook.

1. Every historian knows Delamare’s Compendium. At the beginning of the eighteenth century, this administrator undertook the compilation of the whole kingdom’s police regulations. It’s an infinite source of highly valuable information. The general conception of the police that such a quantity of rules and regulations could convey to an administrator like Delamare is what I’d like to emphasise.

Delamare says that the police must see to eleven things within the state: (1) religion; (2) morals; (3) health; ( 4 ) supplies; ( 5 ) roads, highways, town buildings; (6) public safety; (7) the liberal arts (roughly speaking, arts and science); (8) trade; (9) factories; (10) manservants and labourers; (11) the poor.

The same classification features in every treatise concerning the police. As in Turquet’s utopia programme, apart from the army, justice properly speaking, and direct taxes, the police apparently sees to everything. The same thing can be said differently: Royal power had asserted itself against feudalism thanks to the support of an armed force and by developing a judicial system and establishing a tax system. These were the ways in which royal power was traditionally wielded. Now, ‘the police’ is the term covering the whole new field in which centralised political and administrative power can intervene.

Now, what is the logic behind intervention in cultural rites, small-scale production techniques, intellectual life, and the road network ?

Delamare’s answer seems a bit hesitant. Now he says, “The police sees to everything pertaining to men’s happiness”; now he says, “The police sees to everything regulating ‘society’ (social relations) carried on between men.” Now again, he says that the police sees to living. This is the definition I will dwell upon. It’s the most original and it clarifies the other two; and Delamare himself dwells upon it. He makes the following remarks as to the police’s eleven objects. The police deals with religion, not, of course, from the point of view of dogmatic truth, but from that of the moral quality of life. In seeing to health and supplies, it deals with the preservation of life; concerning trade, factories, workers, the poor and public order, it deals with the conveniences of life. In seeing to the theatre, literature, entertainment, its object is life’s pleasures. In short, life is the object of the police: the indispensable, the useful, and the superfluous. That people survive, live, and even do better than just that, is what the police has to ensure.

And so we link up with the other definitions Delamare proposes: “The sole purpose of the police is to lead man to the utmost happiness to be enjoyed in this life.” Or again, the police cares for the good of the soul (thanks to religion and morality), the good of the body (food, health, clothing, housing), wealth (industry, trade, labour). Or again, the police sees to the benefits that can be derived only from living in society.

2. Now let us have a look at the German textbooks. They were used to teach the science of administration somewhat later on. It was taught in various universities, especially in Gottingen, and was extremely important for continental Europe. Here it was that the Prussian, Austrian, and Russian civil servants – those who were to carry out Joseph 11’s and the Great Catherine’s reforms – were trained. Certain Frenchmen, especially in Napoleon’s entourage, knew the teachings of Polizeiwissenschaft very well.

What was to be found in these textbooks ? Huhenthal’s Liber de Politia featured the following items : the number of citizens; religion and morals; health; food; the safety of persons and of goods (particularly in reference to fires and floods) ; the administration of justice; citizens’ conveniences and pleasures (how to obtain them, how to restrict them). Then comes a series of chapters about rivers, forests, mines, brine pits, housing, and finally, several chapters on how to acquire goods either through farming, industry, or trade.

In his Precis for the Police, Willebrand speaks successively of morals, trades and crafts, health, safety, and last of all, of town building and planning. Considering the subjects at least, there isn’t a great deal of difference from Delamare’s.

But the most important of these texts is Von Justi’s Elements of Police. The police’s specific purpose is still defined as live individuals living in society. Nevertheless, the way Von Justi organises his book is somewhat different. He studies first what he calls the ‘state’s landed property’, i.e.,its territory. He considers it in two different aspects: how it is inhabited (town vs. country), and then, who inhabit these territories (the number of people, their growth, health, mortality, immigration). Von Justi then analyses the ‘goods and chattels’, i.e., the commodities, manufactured goods, and their circulation which involve problems pertaining to cost, credit, and currency. Finally, the last part is devoted to the conduct of individuals: their morals, their occupational capabilities, their honesty, and how they respect the Law.

In my opinion, Von Justi’s work is a much more advanced demonstration of how the police problem was evolved than Delamare’s ‘Introduction’ to his compendium of statutes. There are four reasons for this.

First, Von Justi defines much more clearly what the central paradox of police is. The police, he says, is what enables the state to increase its power and exert its strength to the full. On the other hand, the police has to keep. the citizens happy – happiness being understood as survival, life, and improved living. He perfectly defines what I feel to be the aim of the modern art of government, or state rationality: viz., to develop those elements constitutive of individuals’ lives in such a way that their development also fosters that of the strength of the state.

Von Justi then draws a distinction between this task, which he calls Polizei, as do his contemporaries, and Politik, Die Politik. Die Politik is basically a negative task. It consists in the state’s fighting against its internal and external enemies. Polizei, however, is a positive task: it has to foster both citizens’ lives and the state’s strength.

And here is the important point: Von Justi insists much more than does Delamare on a notion which became increasingly important during the eighteenth century – population. Population was understood as a group of live individuals. Their characteristics were those of all the individuals belonging to the same species, living side by side. (They thus presented mortality and fecundity rates; they were subject to epidemics, overpopulation; they presented a certain type of territorial distribution.) True, Delamare did use the term ‘life’ to characterise the concern of the police, but the emphasis he gave it wasn’t very pronounced. Proceeding through the eighteenth century, and especially in Germany, we see that what is defined as the object of the police is population, i.e., a group of beings living in a given area.

And last, one only has to read Von Justi to see that it is not only a utopia, as with Turquet, nor a compendium of systematically filed regulations. Von Justi claims to draw up a Polizeiwissenschuft. His book isn’t simply a list of prescriptions. It’s also a grid through which the state, i.e., territory, resources, population, towns, etc., can be observed. Von Justi combines ‘statistics’ (the description of states) with the art of government. Polizeiwissenschuft is at once an art of government and a method for the analysis of a population living on a territory.

Such historical considerations must appear to be very remote; they must seem useless in regard to present-day concerns. I wouldn’t go as far as Hermann Hesse, who says that only the “constant reference to history, the past, and antiquity” is fecund. But experience has taught me that the history of various forms of rationality is sometimes more effective in unsettling our certitudes and dogmatism than is abstract criticism. For centuries, religion couldn’t bear having its history told. Today, our schools of rationality balk at having their history written, which is no doubt significant.

What I’ve wanted to show is a direction for research. These are only the rudiments of something I’ve been working at for the last two years. It’s the historical analysis of what we could call, using an obsolete term, the art of government.

This study rests upon several basic assumptions. I’d sum them up like this:

Power is not a substance. Neither is it a mysterious property whose origin must be delved into. Power is only a certain type of relation between individuals. Such relations are specific, that is, they have nothing to do with exchange, production, communication, even though they combine with them. The characteristic feature of power is that some men can more or less entirely determine other men’s conduct – but never exhaustively or coercively. A man who is chained up and beaten is subject to force being exerted over him. Not power. But if he can be induced to speak, when his ultimate recourse could have been to hold his tongue, preferring death, then he has been caused to behave in a certain way. His freedom has been subjected to power. He has been submitted to government. If an individual can remain free, however little his freedom may be, power can subject him to government. There is no power without potential refusal or revolt.

As for all relations among men, many factors determine power. Yet rationalisation is also constantly working away at it. There are specific forms to such rationalisation. It differs from the rationalisation peculiar to economic processes, or to production and communication techniques; it differs from that of scientific discourse. The government of men by men -whether they form small or large groups, whether it is power exerted by men over women, or by adults over children, or by one class over another, or by a bureaucracy over a population – involves a certain type of rationality. It doesn’t involve instrumental violence.

Consequently, those who resist or rebel against a form of power cannot merely be content to denounce violence or criticise an institution. Nor is it enough to cast the blame on reason in general. What has to be questioned is the form of rationality at stake. The criticism of power wielded over the mentally sick or mad cannot be restricted to psychiatric institutions; nor can those questioning the power to punish be content with denouncing prisons as total institutions. The question is: how are such relations of power rationalized? Asking it is the only way to avoid other institutions, with the same objectives and the same effects, from taking their stead.

For several centuries, the state has been one of the most remarkable, one of the most redoubtable, forms of human government. Very significantly, political criticism has reproached the state with being simultaneously a factor for individualisation and a totalitarian principle, Just to look at nascent state rationality, just to see what its first policing project was, makes it clear that, right from the start, the state is both individualising and totalitarian. Opposing the individual and his interests to it is just as hazardous as opposing it with the community and its requirements. Political rationality has grown and imposed itself all throughout the history of Western societies. It first took its stand on the idea of pastoral power, then on that of reason of state. Its inevitable effects are both individualisation and totalisation. Liberation can only come from attacking, not just one of these two effects, but political rationality’s very roots.

392 U.S. 1

TERRY v. OHIO.
CERTIORARI TO THE SUPREME COURT OF OHIO.
No. 67.
Argued December 12, 1967.
Decided June 10, 1968.

A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of “casing a job, a stick-up,” the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something,” whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying  concealed weapons. The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that “no substantial constitutional question” was involved. Held:

1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, “protects people, not places,” and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9.

2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12.

3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques; and this Court’s approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15.

4. The Fourth Amendment applies to “stop and frisk” procedures such as those followed here. Pp. 16-20.

(a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that personwithin the meaning of the Fourth Amendment. P. 16.

(b) A careful exploration of the outer surfaces of a person’s clothing in an attempt to find weapons is a “search” under that Amendment. P. 16.

5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27.

(a) Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20.

(b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22.

(c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22.

(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.

(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26.

(f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27.

6. The officer’s protective seizure of petitioner and his companions and the limited search which he made were reasonable, both at their inception and as conducted. Pp. 27-30.

(a) The actions of petitioner and his companions were consistent with the officer’s hypothesis that they were contemplating a daylight robbery and were armed. P. 28.

(b) The officer’s search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30.

7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31.

Affirmed. 

Louis Stokes argued the cause for petitioner. With him on the brief was Jack G. Day.

Reuben M. Payne argued the cause for respondent. With him on the brief was John T. Corrigan.

Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.

Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; by Charles Moylan, Jr., Evelle J. Younger, and Harry Wood for the National District Attorneys’ Assn., and by James R. Thompson for Americans for Effective Law Enforcement.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary.Following  the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case when I looked over they didn’t look right to me at the time.”

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece – in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.

By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of “casing a job, a stick-up,” and that he considered it his duty as a police officer to investigate further. He added that he feared “they may have a gun.” Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker’s store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action. Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men “mumbled something” in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz’ outer garments. Officer McFadden seized Chilton’s gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.

On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it “would be stretching the facts beyond reasonable comprehension” to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants’ motion on the ground that Officer McFadden, on the basis of his experience, “had reasonable cause to believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.” Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer’s investigatory duties, for without it “the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.”

After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no “substantial constitutional question” was involved. We granted certiorari, 387 U.S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner’s rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643(1961). We affirm the conviction.

I.

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” This inestimable right of  personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

We have recently held that “the Fourth Amendment protects people, not places,” Katz v. United States, 389 U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable “expectation of privacy,” id., at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.S. 89 (1964); Rios v. United States,364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.

We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity – issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk” – as it is sometimes euphemistically termed – suspicious persons.

On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a “frisk” and a “search.” Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” amount to a mere “minor inconvenience and petty indignity,” which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion.

On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. It is contended with some force that there is not – and cannot be – a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent  in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in “the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation’s cities.

In this context we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street. The State has characterized the issue here as “the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as `stop and frisk’).” But this is only partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391 -393 (1914). Thus its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere “form of words.” Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function – “the imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. Thus in our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.

The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. Doubtless some police “field interrogation” conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.

Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.  Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman’s power when he confronts a citizen without probable cause to arrest him.

II.

Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and whether and when he conducted a “search.” There is some suggestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime – “arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

The danger in the logic which proceeds upon distinctions between a “stop” and an “arrest,” or “seizure” of the person, and between a “frisk” and a “search” is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in  the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v.  United States, 282 U.S. 344, 356 -358 (1931); see United States v. Di Re, 332 U.S. 581, 586 -587 (1948). The scope of the search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e. g., Preston v. United States, 376 U.S. 364, 367 -368 (1964); Agnello v. United States, 269 U.S. 20, 30 -31 (1925).

The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from the central inquiry under the Fourth Amendment – the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. “Search” and “seizure” are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”

In this case there can be no question, then, that Officer McFadden “seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did. And in determining whether the seizure and search were “unreasonable” our inquiry is a dual one – whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

III.

If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see, e. g., Katz v. United States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610 (1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367 -368 (1964). But we deal here with an entire rubric of police conduct – necessarily swift action predicated upon the on-the-spot observations of the officer on the beat – which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.

Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” Camara v. Municipal Court, 387 U.S. 523, 534 -535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96 -97 (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e. g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple “`good faith on the part of the arresting officer is not enough.’ . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Beck v. Ohio, supra, at 97.

Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people  in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story in quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.

The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.  Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. 

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or for a crime the commission of which led the officer to investigate in the first place. However, this argument must be closely examined.

Petitioner does not argue that a police officer should refrain from making any investigation of suspicious circumstances until such time as he has probable cause to make an arrest; nor does he deny that police officers in properly discharging their investigative function may find themselves confronting persons who might well be armed and dangerous. Moreover, he does not say that an officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is unreasonable for the policeman to take that step until such time as the situation evolves to a point where there is probable cause to make an arrest. When that point has been reached, petitioner would concede the officer’s right to conduct a search of the suspect for weapons, fruits or instrumentalities of the crime, or “mere” evidence, incident to the arrest.

There are two weaknesses in this line of reasoning, however. First, it fails to take account of traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to  arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a “full” search, even though it remains a serious intrusion.

A second, and related, objection to petitioner’s argument is that it assumes that the law of arrest has already worked out the balance between the particular interests involved here – the neutralization of danger to the policeman in the investigative circumstance and the sanctity of the individual. But this is not so. An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for  the purpose of prosecuting him for a crime. Petitioner’s reliance on cases which have worked out standards of reasonableness with regard to “seizures” constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal Court, supra.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.

IV.

We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a “stick-up.” We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery – which, it is reasonable to assume, would be likely to involve the use of weapons – and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker’s store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation. Compare Katz v. United States, 389 U.S. 347, 354 -356 (1967). The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that “limitations upon the fruit to be gathered tend to limit the quest itself.” United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930); see, e. g., Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United States, 364 U.S. 206, 216 -221 (1960). Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation. Warden v. Hayden,387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).

We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364, 367 (1964). The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.

V.

We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.  Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Affirmed.

MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from and relies upon this Court’s opinion in Katz v. United States and the concurring opinion in Warden v. Hayden.

MR. JUSTICE HARLAN, concurring.

While I unreservedly agree with the Court’s ultimate holding in this case, I am constrained to fill in a few gaps, as I see them, in its opinion. I do this because what is said by this Court today will serve as initial guidelines for law enforcement authorities and courts throughout the land as this important new field of law develops.

A police officer’s right to make an on-the-street “stop” and an accompanying “frisk” for weapons is of course bounded by the protections afforded by the Fourth and Fourteenth Amendments. The Court holds, and I agree, that while the right does not depend upon possession by the officer of a valid warrant, nor upon the existence of probable cause, such activities must be reasonable under the circumstances as the officer credibly relates them in court. Since the question in this and most cases is whether evidence produced by a frisk is admissible, the problem is to determine what makes a frisk reasonable.

If the State of Ohio were to provide that police officers could, on articulable suspicion less than probable cause, forcibly frisk and disarm persons thought to be carrying concealed weapons, I would have little doubt that action taken pursuant to such authority could be constitutionally reasonable. Concealed weapons create an immediate [392 U.S. 1, 32] and severe danger to the public, and though that danger might not warrant routine general weapons checks, it could well warrant action on less than a “probability.” I mention this line of analysis because I think it vital to point out that it cannot be applied in this case. On the record before us Ohio has not clothed its policemen with routine authority to frisk and disarm on suspicion; in the absence of state authority, policemen have no more right to “pat down” the outer clothing of passers-by, or of persons to whom they address casual questions, than does any other citizen. Consequently, the Ohio courts did not rest the constitutionality of this frisk upon any general authority in Officer McFadden to take reasonable steps to protect the citizenry, including himself, from dangerous weapons.

The state courts held, instead, that when an officer is lawfully confronting a possibly hostile person in the line of duty he has a right, springing only from the necessity of the situation and not from any broader right to disarm, to frisk for his own protection. This holding, with which I agree and with which I think the Court agrees, offers the only satisfactory basis I can think of for affirming this conviction. The holding has, however, two logical corollaries that I do not think the Court has fully expressed.

In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person [392 U.S. 1, 33] addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.

Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.

The facts of this case are illustrative of a proper stop and an incident frisk. Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so. When he did, he had no reason whatever to suppose that Terry might be armed, apart from the fact that he suspected him of planning a violent crime. McFadden asked Terry his name, to which Terry “mumbled something.” Whereupon McFadden, without asking Terry to speak louder and without giving him any chance to explain his presence or his actions, forcibly frisked him.

I would affirm this conviction for what I believe to be the same reasons the Court relies on. I would, however, make explicit what I think is implicit in affirmance on [392 U.S. 1, 34] the present facts. Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer’s right to take suitable measures for his own safety followed automatically.

Upon the foregoing premises, I join the opinion of the Court.

MR. JUSTICE WHITE, concurring.

I join the opinion of the Court, reserving judgment, however, on some of the Court’s general remarks about the scope and purpose of the exclusionary rule which the Court has fashioned in the process of enforcing the Fourth Amendment.

Also, although the Court puts the matter aside in the context of this case, I think an additional word is in order concerning the matter of interrogation during an investigative stop. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. In my view, it is temporary detention, warranted by the circumstances, which chiefly justifies the protective frisk for weapons. Perhaps the frisk itself, where proper, will have beneficial results whether questions are asked or not. If weapons are found, an arrest will follow. [392 U.S. 1, 35] If none are found, the frisk may nevertheless serve preventive ends because of its unmistakable message that suspicion has been aroused. But if the investigative stop is sustainable at all, constitutional rights are not necessarily violated if pertinent questions are asked and the person is restrained briefly in the process.

MR. JUSTICE DOUGLAS, dissenting.

I agree that petitioner was “seized” within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a “search.” But it is a mystery how that “search” and that “seizure” can be constitutional by Fourth Amendment standards, unless there was “probable cause  to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.

The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue and that [392 U.S. 1, 36] was the offense charged, there would be “probable cause” shown. But the crime here is carrying concealed weapons; 2 and there is no basis for concluding that the officer had “probable cause” for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of “probable cause.” We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action. We have said precisely the opposite over and over again. 3 [392 U.S. 1, 37]

In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.” Moreover, the meaning of “probable cause” is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100 -102:

“The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of `probable cause’ before a magistrate was required.

. . . . .

“That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even `strong reason to suspect’ was not adequate to support a warrant [392 U.S. 1, 38] for arrest. And that principle has survived to this day. . . .

“. . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.”

The infringement on personal liberty of any “seizure” of a person can only be “reasonable” under the Fourth Amendment if we require the police to possess “probable cause” before they seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime. “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 .

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. [392 U.S. 1, 39] Until the Fourth Amendment, which is closely allied with the Fifth, 4 is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.