The Trial

1937

Franz Kafka 

K. was informed by telephone that there would be a small hearing concerning his case the following Sunday. He was made aware that these cross examinations would follow one another regularly, perhaps not every week but quite frequently. On the one hand it was in everyone’s interest to bring proceedings quickly to their conclusion, but on the other hand every aspect of the examinations had to be carried out thoroughly without lasting too long because of the associated stress. For these reasons, it had been decided to hold a series of brief examinations following on one after another. Sunday had been chosen as the day for the hearings so that K. would not be disturbed in his professional work. It was assumed that he would be in agreement with this, but if he wished for another date then, as far as possible, he would be accommodated. Cross-examinations could even be held in the night, for instance, but K. would probably not be fresh enough at that time. Anyway, as long as K. made no objection, the hearing would be left on Sundays. It was a matter of course that he would have to appear without fail, there was probably no need to point this out to him. He would be given the number of the building where he was to present himself, which was in a street in a suburb well away from the city centre which K. had never been to before.

Once he had received this notice, K. hung up the receiver without giving an answer; he had decided immediately to go there that Sunday, it was certainly necessary, proceedings had begun and he had to face up to it, and this first examination would probably also be the last. He was still standing in thought by the telephone when he heard the voice of the deputy director behind him – he wanted to use the telephone but K. stood in his way. “Bad news?” asked the deputy director casually, not in order to find anything out but just to get K. away from the device. “No, no,” said K., he stepped to one side but did not go away entirely. The deputy director picked up the receiver and, as he waited for his connection, turned away from it and said to K., “One question, Mr. K.:

Would you like to give me the pleasure of joining me on my sailing boat on Sunday morning? There’s quite a few people coming, you’re bound to know some of them. One of them is Hasterer, the state attorney. Would you like to come along? Do come along!” K. tried to pay attention to what the deputy director was saying. It was of no small importance for him, as this invitation from the deputy director, with whom he had never got on very well, meant that he was trying to improve his relations with him. It showed how important K. had become in the bank and how its second most important official seemed to value his friendship, or at least his impartiality. He was only speaking at the side of the telephone receiver while he waited for his connection, but in giving this invitation the deputy director was humbling himself. But K. would have to humiliate him a second time as a result, he said, “Thank you very much, but I’m afraid I will have no time on Sunday, I have a previous obligation.” “Pity,” said the deputy director, and turned to the telephone conversation that had just been connected. It was not a short conversation, but K., remained standing confused by the instrument all the time it was going on. It was only when the deputy director hung up that he was shocked into awareness and said, in order to partially excuse his standing there for no reason, “I’ve just received a telephone call, there’s somewhere I need to go, but they forgot to tell me what time.” “Ask them then,” said the deputy director. “It’s not that important,” said K., although in that way his earlier excuse, already weak enough, was made even weaker. As he went, the deputy director continued to speak about other things. K. forced himself to answer, but his thoughts were mainly about that Sunday, how it would be best to get there for nine o’clock in the morning as that was the time that courts always start work on weekdays.

The weather was dull on Sunday. K. was very tired, as he had stayed out drinking until late in the night celebrating with some of the regulars, and he had almost overslept. He dressed hurriedly, without the time to think and assemble the various plans he had worked out during the week. With no breakfast, he rushed to the suburb he had been told about. Oddly enough, although he had little time to look around him, he came across the three bank officials involved in his case, Rabensteiner, Kullich and Kaminer. The first two were travelling in a tram that went across K.’s route, but Kaminer sat on the terrace of a café and leant curiously over the wall as K. came over. All of them seemed to be looking at him, surprised at seeing their superior running; it was a kind of pride that made K. want to go on foot, this was his affair and the idea of any help from strangers, however slight, was repulsive to him, he also wanted to avoid asking for anyone’s help because that would initiate them into the affair even if only slightly. And after all, he had no wish at all to humiliate himself before the committee by being too punctual. Anyway, now he was running so that he would get there by nine o’clock if at all possible, even though he had no appointment for this time.

He had thought that he would recognise the building from a distance by some kind of sign, without knowing exactly what the sign would look like, or from some particular kind of activity outside the entrance. K. had been told that the building was in Juliusstrasse, but when he stood at the street’s entrance it consisted on each side of almost nothing but monotonous, grey constructions, tall blocks of flats occupied by poor people. Now, on a Sunday morning, most of the windows were occupied, men in their shirtsleeves leant out smoking, or carefully and gently held small children on the sills. Other windows were piled up with bedding, above which the dishevelled head of a woman would briefly appear. People called out to each other across the street, one of the calls provoked a loud laugh about K. himself. It was a long street, and spaced evenly along it were small shops below street level, selling various kinds of foodstuffs, which you reached by going down a few steps. Women went in and out of them or stood chatting on the steps. A fruitmonger, taking his goods up to the windows, was just as inattentive as K. and nearly knocked him down with his cart. Just then, a gramophone, which in better parts of town would have been seen as worn out, began to play some murderous tune.

K. went further into the street, slowly, as if he had plenty of time now, or as if the examining magistrate were looking at him from one of the windows and therefore knew that K. had found his way there. It was shortly after nine. The building was quite far down the street, it covered so much area it was almost extraordinary, and the gateway in particular was tall and long. It was clearly intended for delivery wagons belonging to the various warehouses all round the yard which were now locked up and carried the names of companies some of which K. knew from his work at the bank. In contrast with his usual habits, he remained standing a while at the entrance to the yard taking in all these external details. Near him, there was a bare-footed man sitting on a crate and reading a newspaper. There were two lads swinging on a hand cart. In front of a pump stood a weak, young girl in a bedjacket who, as the water flowed into her can, looked at K. There was a piece of rope stretched between two windows in a corner of the yard, with some washing hanging on it to dry. A man stood below it calling out instructions to direct the work being done.

K. went over to the stairway to get to the room where the hearing was to take place, but then stood still again as besides these steps he could see three other stairway entrances, and there also seemed to be a small passageway at the end of the yard leading into a second yard. It irritated him that he had not been given more precise directions to the room, it meant they were either being especially neglectful with him or especially indifferent, and he decided to make that clear to them very loudly and very unambiguously. In the end he decided to climb up the stairs, his thoughts playing on something that he remembered the policeman, Willem, saying to him; that the court is attracted by the guilt, from which it followed that the courtroom must be on the stairway that K. selected by chance.

As he went up he disturbed a large group of children playing on the stairs who looked at him as he stepped through their rows. “Next time I come here,” he said to himself, “I must either bring sweets with me to make them like me or a stick to hit them with.” Just before he reached the first landing he even had to wait a little while until a ball had finished its movement, two small lads with sly faces like grown-up scoundrels held him by his trouser-legs until it had; if he were to shake them off he would have to hurt them, and he was afraid of what noise they would make by shouting.

On the first floor, his search began for real. He still felt unable to ask for the investigating committee, and so he invented a joiner called Lanz – that name occurred to him because the captain, Mrs. Grubach’s nephew, was called Lanz – so that he could ask at every flat whether Lanz the joiner lived there and thus obtain a chance to look into the rooms. It turned out, though, that that was mostly possible without further ado, as almost all the doors were left open and the children ran in and out. Most of them were small, one-windowed rooms where they also did the cooking. Many women held babies in one arm and worked at the stove with the other. Half grown girls, who seemed to be dressed in just their pinafores worked hardest running to and fro. In every room, the beds were still in use by people who were ill, or still asleep, or people stretched out on them in their clothes. K. knocked at the flats where the doors were closed and asked whether Lanz the joiner lived there. It was usually a woman who opened the door, heard the enquiry and turned to somebody in the room who would raise himself from the bed. “The gentleman’s asking if a joiner called Lanz, lives here.” “A joiner, called Lanz?” he would ask from the bed.” “That’s right,” K. would say, although it was clear that the investigating committee was not to be found there, and so his task was at an end. There were many who thought it must be very important for K. to find Lanz the joiner and thought long about it, naming a joiner who was not called Lanz or giving a name that had some vague similarity with Lanz, or they asked neighbours or accompanied K. to a door a long way away where they thought someone of that sort might live in the back part of the building or where someone would be who could advise K. better than they could themselves. K. eventually had to give up asking if he did not want to be led all round from floor to floor in this way. He regretted his initial plan, which had at first seemed so practical to him. As he reached the fifth floor, he decided to give up the search, took his leave of a friendly, young worker who wanted to lead him on still further and went down the stairs. But then the thought of how much time he was wasting made him cross, he went back again and knocked at the first door on the fifth floor. The first thing he saw in the small room was a large clock on the wall which already showed ten o’clock. “Is there a joiner called Lanz who lives here?” he asked. “Pardon?” said a young woman with black, shining eyes who was, at that moment, washing children’s underclothes in a bucket. She pointed her wet hand towards the open door of the adjoining room.

K. thought he had stepped into a meeting. A medium sized, two windowed room was filled with the most diverse crowd of people – nobody paid any attention to the person who had just entered. Close under its ceiling it was surrounded by a gallery which was also fully occupied and where the people could only stand bent down with their heads and their backs touching the ceiling. K., who found the air too stuffy, stepped out again and said to the young woman, who had probably misunderstood what he had said, “I asked for a joiner, someone by the name of Lanz.” “Yes,” said the woman, “please go on in.” K. would probably not have followed her if the woman had not gone up to him, taken hold of the door handle and said, “I’ll have to close the door after you, no-one else will be allowed in.” “Very sensible,” said K., “but it’s too full already.” But then he went back in anyway. He passed through between two men who were talking beside the door – one of them held both hands far out in front of himself making the movements of counting out money, the other looked him closely in the eyes – and someone took him by the hand. It was a small, red-faced youth. “Come in, come in,” he said. K. let himself be led by him, and it turned out that there was – surprisingly in a densely packed crowd of people moving to and fro – a narrow passage which may have been the division between two factions; this idea was reinforced by the fact that in the first few rows to the left and the right of him there was hardly any face looking in his direction, he saw nothing but the backs of people directing their speech and their movements only towards members of their own side. Most of them were dressed in black, in old, long, formal frock coats that hung down loosely around them. These clothes were the only thing that puzzled K., as he would otherwise have taken the whole assembly for a local political meeting.

At the other end of the hall where K. had been led there was a little table set at an angle on a very low podium which was as overcrowded as everywhere else, and behind the table, near the edge of the podium, sat a small, fat, wheezing man who was talking with someone behind him. This second man was standing with his legs crossed and his elbows on the backrest of the chair, provoking much laughter. From time to time he threw his arm in the air as if doing a caricature of someone. The youth who was leading K. had some difficulty in reporting to the man. He had already tried twice to tell him something, standing on tip-toe, but without getting the man’s attention as he sat there above him. It was only when one of the people up on the podium drew his attention to the youth that the man turned to him and leant down to hear what it was he quietly said. Then he pulled out his watch and quickly looked over at K. “You should have been here one hour and five minutes ago,” he said. K. was going to give him a reply but had no time to do so, as hardly had the man spoken than a general muttering arose all over the right hand side of the hall. “You should have been here one hour and five minutes ago,” the man now repeated, raising his voice this time, and quickly looked round the hall beneath him. The muttering also became immediately louder and, as the man said nothing more, died away only gradually. Now the hall was much quieter than when K. had entered. Only the people up in the gallery had not stopped passing remarks. As far as could be distinguished, up in the half-darkness, dust and haze, they seemed to be less well dressed than those below. Many of them had brought pillows that they had put between their heads and the ceiling so that they would not hurt themselves pressed against it. K. had decided he would do more watching than talking, so he did not defend himself for supposedly having come late, and simply said, “Well maybe I have arrived late, I’m here now.” There followed loud applause, once more from the right hand side of the hall. Easy people to get on your side, thought K., and was bothered only by the quiet from the left hand side which was directly behind him and from which there was applause from only a few individuals. He wondered what he could say to get all of them to support him together or, if that were not possible, to at least get the support of the others for a while. “Yes,” said the man, “but I’m now no longer under any obligation to hear your case” – there was once more a muttering, but this time it was misleading as the man waved the people’s objections aside with his hand and continued – “I will, however, as an exception, continue with it today. But you should never arrive late like this again. And now, step forward!” Someone jumped down from the podium so that there would be a place free for K., and K. stepped up onto it. He stood pressed closely against the table, the press of the crowd behind him was so great that he had to press back against it if he did not want to push the judge’s desk down off the podium and perhaps the judge along with it. The judge, however, paid no attention to that but sat very comfortably on his chair and, after saying a few words to close his discussion with the man behind him, reached for a little note book, the only item on his desk. It was like an old school exercise book and had become quite misshapen from much thumbing. “Now then,” said the judge, thumbing through the book. He turned to K. with the tone of someone who knows his facts and said, “you are a house painter?” “No,” said K., “I am the chief clerk in a large bank.” This reply was followed by laughter among the right hand faction down in the hall, it was so hearty that K. couldn’t stop himself joining in with it. The people supported themselves with their hands on their knees and shook as if suffering a serious attack of coughing. Even some of those in the gallery were laughing. The judge had become quite cross but seemed to have no power over those below him in the hall, he tried to reduce what harm had been done in the gallery and jumped up threatening them, his eyebrows, until then hardly remarkable, pushed themselves up and became big, black and bushy over his eyes.

The left hand side of the hall was still quiet, though, the people stood there in rows with their faces looking towards the podium listening to what was being said there, they observed the noise from the other side of the hall with the same quietness and even allowed some individuals from their own ranks, here and there, to go forward into the other faction. The people in the left faction were not only fewer in number than the right but probably were no more important than them, although their behaviour was calmer and that made it seem like they were. When K. now began to speak he was convinced he was doing it in the same way as them.

“Your question, My Lord, as to whether I am a house painter – in fact even more than that, you did not ask at all but merely imposed it on me – is symptomatic of the whole way these proceedings against me are being carried out. Perhaps you will object that there are no proceedings against me. You will be quite right, as there are proceedings only if I acknowledge that there are. But, for the moment, I do acknowledge it, out of pity for yourselves to a large extent. It’s impossible not to observe all this business without feeling pity. I don’t say things are being done without due care but I would like to make it clear that it is I who make the acknowledgement.” K. stopped speaking and looked down into the hall. He had spoken sharply, more sharply than he had intended, but he had been quite right. It should have been rewarded with some applause here and there but everything was quiet, they were all clearly waiting for what would follow, perhaps the quietness was laying the ground for an outbreak of activity that would bring this whole affair to an end. It was somewhat disturbing that just then the door at the end of the hall opened, the young washerwoman, who seemed to have finished her work, came in and, despite all her caution, attracted the attention of some of the people there. It was only the judge who gave K. any direct pleasure, as he seemed to have been immediately struck by K.’s words. Until then, he had listened to him standing, as K.’s speech had taken him by surprise while he was directing his attention to the gallery. Now, in the pause, he sat down very slowly, as if he did not want anyone to notice. He took out the notebook again, probably so that he could give the impression of being calmer.

“That won’t help you, sir,” continued K., “even your little book will only confirm what I say.” K. was satisfied to hear nothing but his own quiet words in this room full of strangers, and he even dared casually to pick up the examining judge’s notebook and, touching it only with the tips of his fingers as if it were something revolting, lifted it in the air, holding it just by one of the middle pages so that the others on each side of it, closely written, blotted and yellowing, flapped down. “Those are the official notes of the examining judge,” he said, and let the notebook fall down onto the desk. “You can read in your book as much as you like, sir, I really don’t have anything in this charge book to be afraid of, even though I don’t have access to it as I wouldn’t want it in my hand, I can only touch it with two fingers.” The judge grabbed the notebook from where it had fallen on the desk – which could only have been a sign of his deep humiliation, or at least that is how it must have been perceived – tried to tidy it up a little, and held it once more in front of himself in order to read from it. The people in the front row looked up at him, showing such tension on their faces that he looked back down at them for some time. Every one of them was an old man, some of them with white beards. Could they perhaps be the crucial group who could turn the whole assembly one way or the other? They had sunk into a state of motionlessness while K. gave his oration, and it had not been possible to raise them from this passivity even when the judge was being humiliated. “What has happened to me,” continued K., with less of the vigour he had had earlier, he continually scanned the faces in the first row, and this gave his address a somewhat nervous and distracted character, “what has happened to me is not just an isolated case. If it were it would not be of much importance as it’s not of much importance to me, but it is a symptom of proceedings which are carried out against many. It’s on behalf of them that I stand here now, not for myself alone.”

Without having intended it, he had raised his voice. Somewhere in the hall, someone raised his hands and applauded him shouting, “Bravo! Why not then? Bravo! Again I say, Bravo!” Some of the men in the first row groped around in their beards, none of them looked round to see who was shouting. Not even K. thought him of any importance but it did raise his spirits; he no longer thought it at all necessary that all of those in the hall should applaud him, it was enough if the majority of them began to think about the matter and if only one of them, now and then, was persuaded.

“I’m not trying to be a successful orator,” said K. after this thought, “that’s probably more than I’m capable of anyway. I’m sure the examining judge can speak far better than I can, it is part of his job after all. All that I want is a public discussion of a public wrong. Listen: ten days ago I was placed under arrest, the arrest itself is something I laugh about but that’s beside the point. They came for me in the morning when I was still in bed. Maybe the order had been given to arrest some house painter – that seems possible after what the judge has said – someone who is as innocent as I am, but it was me they chose. There were two police thugs occupying the next room. They could not have taken better precautions if I had been a dangerous robber. And these policemen were unprincipled riff-raff, they talked at me till I was sick of it, they wanted bribes, they wanted to trick me into giving them my clothes, they wanted money, supposedly so that they could bring me my breakfast after they had blatantly eaten my own breakfast in front of my eyes. And even that was not enough. I was led in front of the supervisor in another room. This was the room of a lady who I have a lot of respect for, and I was forced to look on while the supervisor and the policemen made quite a mess of this room because of me, although not through any fault of mine. It was not easy to stay calm, but I managed to do so and was completely calm when I asked the supervisor why it was that I was under arrest. If he were here he would have to confirm what I say. I can see him now, sitting on the chair belonging to that lady I mentioned – a picture of dull-witted arrogance. What do you think he answered? What he told me, gentlemen, was basically nothing at all; perhaps he really did know nothing, he had placed me under arrest and was satisfied. In fact he had done more than that and brought three junior employees from the bank where I work into the lady’s room; they had made themselves busy interfering with some photographs that belonged to the lady and causing a mess. There was, of course, another reason for bringing these employees; they, just like my landlady and her maid, were expected to spread the news of my arrest and damage my public reputation and in particular to remove me from my position at the bank. Well they didn’t succeed in any of that, not in the slightest, even my landlady, who is quite a simple person – and I will give you here her name in full respect, her name is Mrs. Grubach – even Mrs. Grubach was understanding enough to see that an arrest like this has no more significance than an attack carried out on the street by some youths who are not kept under proper control. I repeat, this whole affair has caused me nothing but unpleasantness and temporary irritation, but could it not also have had some far worse consequences?” K. broke off here and looked at the judge, who said nothing. As he did so he thought he saw the judge use a movement of his eyes to give a sign to someone in the crowd. K. smiled and said, “And now the judge, right next to me, is giving a secret sign to someone among you. There seems to be someone among you who is taking directions from above. I don’t know whether the sign is meant to produce booing or applause, but I’ll resist trying to guess what its meaning is too soon. It really doesn’t matter to me, and I give his lordship the judge my full and public permission to stop giving secret signs to his paid subordinate down there and give his orders in words instead; let him just say “Boo now!,” and then the next time “Clap now!”.

Whether it was embarrassment or impatience, the judge rocked backwards and forwards on his seat. The man behind him, whom he had been talking with earlier, leant forward again, either to give him a few general words of encouragement or some specific piece of advice. Below them in the hall the people talked to each other quietly but animatedly. The two factions had earlier seemed to hold views strongly opposed to each other but now they began to intermingle, a few individuals pointed up at K., others pointed at the judge. The air in the room was fuggy and extremely oppressive, those who were standing furthest away could hardly even be seen through it. It must have been especially troublesome for those visitors who were in the gallery, as they were forced to quietly ask the participants in the assembly what exactly was happening, albeit with timid glances at the judge. The replies they received were just as quiet, and given behind the protection of a raised hand.

“I have nearly finished what I have to say,” said K., and as there was no bell available he struck the desk with his fist in a way that startled the judge and his advisor and made them look up from each other. “None of this concerns me, and I am therefore able to make a calm assessment of it, and, assuming that this so-called court is of any real importance, it will be very much to your advantage to listen to what I have to say. If you want to discuss what I say, please don’t bother to write it down until later on, I don’t have any time to waste and I’ll soon be leaving.”

There was immediate silence, which showed how well K. was in control of the crowd. There were no shouts among them as there had been at the start, no-one even applauded, but if they weren’t already persuaded they seemed very close to it.

K was pleased at the tension among all the people there as they listened to him, a rustling rose from the silence which was more invigorating than the most ecstatic applause could have been. “There is no doubt,” he said quietly, “that there is some enormous organisation determining what is said by this court. In my case this includes my arrest and the examination taking place here today, an organisation that employs policemen who can be bribed, oafish supervisors and judges of whom nothing better can be said than that they are not as arrogant as some others. This organisation even maintains a high-level judiciary along with its train of countless servants, scribes, policemen and all the other assistance that it needs, perhaps even executioners and torturers – I’m not afraid of using those words. And what, gentlemen, is the purpose of this enormous organisation? Its purpose is to arrest innocent people and wage pointless prosecutions against them which, as in my case, lead to no result. How are we to avoid those in office becoming deeply corrupt when everything is devoid of meaning? That is impossible, not even the highest judge would be able to achieve that for himself. That is why policemen try to steal the clothes off the back of those they arrest, that is why supervisors break into the homes of people they do not know, that is why innocent people are humiliated in front of crowds rather than being given a proper trial. The policemen only talked about the warehouses where they put the property of those they arrest, I would like to see these warehouses where the hard won possessions of people under arrest is left to decay, if, that is, it’s not stolen by the thieving hands of the warehouse workers.” K. was interrupted by a screeching from the far end of the hall, he shaded his eyes to see that far, as the dull light of day made the smoke whitish and hard to see through. It was the washerwoman whom K. had recognised as a likely source of disturbance as soon as she had entered. It was hard to see now whether it was her fault or not. K. could only see that a man had pulled her into a corner by the door and was pressing himself against her. But it was not her who was screaming, but the man, he had opened his mouth wide and looked up at the ceiling. A small circle had formed around the two of them, the visitors near him in the gallery seemed delighted that the serious tone K. had introduced into the gathering had been disturbed in this way. K.’s first thought was to run over there, and he also thought that everyone would want to bring things back into order there or at least to make the pair leave the room, but the first row of people in front of him stayed were they were, no-one moved and no-one let K. through. On the contrary, they stood in his way, old men held out their arms in front of him and a hand from somewhere – he did not have the time to turn round – took hold of his collar. K., by this time, had forgotten about the pair, it seemed to him that his freedom was being limited as if his arrest was being taken seriously, and, without any thought for what he was doing, he jumped down from the podium. Now he stood face to face with the crowd. Had he judged the people properly? Had he put too much faith in the effect of his speech? Had they been putting up a pretence all the time he had been speaking, and now that he come to the end and to what must follow, were they tired of pretending? What faces they were, all around him! Dark, little eyes flickered here and there, cheeks drooped down like on drunken men, their long beards were thin and stiff, if they took hold of them it was more like they were making their hands into claws, not as if they were taking hold of their own beards. But underneath those beards – and this was the real discovery made by K. – there were badges of various sizes and colours shining on the collars of their coats. As far as he could see, every one of them was wearing one of these badges. All of them belonged to the same group, even though they seemed to be divided to the right and the left of him, and when he suddenly turned round he saw the same badge on the collar of the examining judge who calmly looked down at him with his hands in his lap. “So,” called out K, throwing his arms in the air as if this sudden realisation needed more room, “all of you are working for this organisation, I see now that you are all the very bunch of cheats and liars I’ve just been speaking about, you’ve all pressed yourselves in here in order to listen in and snoop on me, you gave the impression of having formed into factions, one of you even applauded me to test me out, and you wanted to learn how to trap an innocent man! Well, I hope you haven’t come here for nothing, I hope you’ve either had some fun from someone who expected you to defend his innocence or else – let go of me or I’ll hit you,” shouted K. to a quivery old man who had pressed himself especially close to him – “or else that you’ve actually learned something. And so I wish you good luck in your trade.” He briskly took his hat from where it lay on the edge of the table and, surrounded by a silence caused perhaps by the completeness of their surprise, pushed his way to the exit. However, the examining judge seems to have moved even more quickly than K., as he was waiting for him at the doorway. “One moment,” he said. K. stood where he was, but looked at the door with his hand already on its handle rather than at the judge. “I merely wanted to draw your attention,” said the judge, “to something you seem not yet to be aware of: today, you have robbed yourself of the advantages that a hearing of this sort always gives to someone who is under arrest.” K. laughed towards the door. “You bunch of louts,” he called, “you can keep all your hearings as a present from me,” then opened the door and hurried down the steps. Behind him, the noise of the assembly rose as it became lively once more and probably began to discuss these events as if making a scientific study of them.

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.

Marisa Jahn and David Rankin

“. . . as a receptive function of skin, touch is not solely a prerogative of the hand. It covers the entire body, including the eye itself, and the feet, which establish our contact with the ground. Conceived as such a pervasive enterprise, the haptic sense actually can be understood as a geographic sense in a global way: it “measures”, “interfaces”, and “borders” our relation to the world, and does so habitually.” —Giuiliana Bruno, Atlas of Emotion. [1]

The following New York State Court of Appeals (New York State’s highest court) ruling, the People v. Hall, 2008 NY Slip Op 2676 (2008), ruling concerns an alleged drug dealer who, when apprehended and stripped, was found to have a piece of string hanging from his rectum. The police declared they had reason to believe that the plaintiff, Azim Hall, had a baggie of crack cocaine inside his rectum. The police pulled the string and found this to be true. Hall maintained that his Fourth Amendment right — that the State must maintain a warrant before entering the private property of an individual — was violated. The police explained they technically never entered the plaintiff’s body cavity; they merely pulled the “plainly visible” string from his anus and the contraband emerged with no difficulty. Hall maintained however that being subjected to a visual inspection was itself a violation of privacy and dignity.

The case that follows, Azim v. The People, raises a number of questions that test the constitutional protection against warrantless searches and seizures of one’s private property, whether dwelling or body: What defines the right to privacy? Is it the contours of the flesh that envelop a the surface of a body and enclose a cavity or also perhaps the eyes of another that probe from a distance? Ultimately, can the two senses — vision and touch— be separated? At stake in this (epistemological) question about the perception of truth are “the interests of human dignity and privacy when a public official peers insider a person’s body” [2].

Employing language that wavers between restrained embarrassment and sensual descriptions of flesh and sight, the judges decide “eyes are as probing as fingers and tools.” Concluding that sight and touch are inextricably bound, the New York’s Court of Appeals consequently firm up constitutional search and seizure rules, imposing greater regulation of both hands and eyes.

But what still remains constitutionally weak are those exceptions that justify a search and seizure without warrant, those exceptions justified on the grounds of “probable cause” that render live the contingent thresholds of privacy.

_____________________________

Excerpts from, The People v. Azim Hall, 2008 NY Slip Op 2676 (2008)

Defendant was transported to a police station where Spiegel searched his clothing but no drugs were found. Spiegel placed defendant in a private detention cell and asked him to remove his clothing. Burnes entered the cell and defendant was ordered to bend over or squat, at which point Spiegel and Burnes observed a string or piece of plastic hanging out of defendant’s rectum. Believing that the string was attached to a package of drugs hidden inside defendant’s body, Burnes ordered defendant to remove the object. When defendant refused, Spiegel proceeded to hold defendant while Burnes pulled on the string and removed a plastic bag that [*3] was found to contain crack cocaine. Hall at *2-3

There are three distinct and increasingly intrusive types of bodily examinations undertaken by law enforcement after certain arrests and it is critical to differentiate between these categories of searches. A “strip search” requires the arrestee to disrobe so that a police officer can visually inspect the person’s body. The second type of examination — a “visual body cavity inspection” — occurs when a police officer looks at the arrestee’s anal or genital cavities, usually by asking the arrestee to bend over; however, the officer does not touch the arrestee’s body cavity. In contrast, a “manual body cavity search” includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface [3]. Hall at *4

Our task, then, is to determine whether it is reasonable to draw a constitutional distinction between a visual inspection of an arrestee’s body (which requires no touching of the person’s body whatsoever) and a manual body cavity search (which necessarily results in an intrusion beyond the body’s surface and possibly the removal of an object or the insertion of an instrument into an orifice). Hall at *7

Summarizing the relevant constitutional precedent, it is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to the next level required for a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity and the visual inspection must be conducted reasonably. If an object is visually detected or other information provides probable cause that an object is hidden inside the arrestee’s body, Schmerber dictates that a warrant be obtained before conducting a body cavity search unless an emergency situation exists [3]. Hall at *11

Because a manual cavity search is more intrusive [than a visual search] and gives rise to heightened privacy and health concerns, when weighed against the legitimate needs of law enforcement, we believe it should be subject to a stricter legal standard. . . A visual body cavity search “do[es] not create a risk of physical pain or injury” and is therefore somehow less intrusive than “a physical search of an arrestee’s body cavity” [however,] it is still true that eyes — as well as fingers and tools — can intrude unreasonably upon constitutionally protected privacy rights (see Kamins, New York Search & Seizure § 4.01 [1], at 4-3 [2007 ed.] Hall (Concurrence of Ciparick) *4

Endnotes

[1] Bruno, Giuliana. Atlas of Emotion: Journeys in Art, Architecture, and Film. New York: Verso, 2007. 254

[2] The People v. Azim Hall, 2008 NY Slip Op 2676 (2008). p.21

[3] See e.g. Paulino v State, 399 Md 341, 352, 924 A2d 308, 315 (2007), cert denied __ US __, 128 S Ct 709 (2007); Blackburn v Snow, 771 F2d 556, n 3 (1st Cir 1985); McGee v State, 105 SW3d 609, 615 (Tx Ct Crim App 2003); Kamins, New York Search and Seizure § 4.03 (5), at 4-141 (2007).

[3] “Clear indication” means “the necessity for particularized suspicion that the evidence sought might be found within the body of the individual”; it is not “a third Fourth Amendment threshold between ‘reasonable suspicion’ and ‘probable cause’” (United States v Montoya de Hernandez, 473 US 531, 540 [1985]). Because Schmerber mandates a warrant in the absence of exigent circumstances, the clear indication test requires that searches beyond the surface of a person’s body be supported by at least probable cause.

“The interests in human dignity and privacy’ invaded when a public official peers inside a person’s body cavity are at least as great as those invaded by a needle piercing the skin.” – United States v Oyekan, 786 F2d 832, 840 n 13

[8th Cir 1986]

Original context

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.

MICHIGAN v. LONG 
CERTIORARI TO THE SUPREME COURT OF MICHIGAN 

No. 82-256. 

Argued February 23, 1983 
Decided July 6, 1983 

Two police officers, patrolling in a rural area at night, observed a car traveling erratically and at excessive speed. When the car swerved into a ditch, the officers stopped to investigate and were met by respondent, the only occupant of the car, at the rear of the car. Respondent, who “appeared to be under the influence of something,” did not respond to initial requests to produce his license and registration, and when he began walking toward the open door of the car, apparently to obtain the registration, the officers followed him and saw a hunting knife on the floorboard of the driver’s side of the car. The officers then stopped respondent and subjected him to a patdown search, which revealed no weapons. One of the officers shined his flashlight into the car, saw something protruding from under the armrest on the front seat, and upon lifting the armrest saw an open pouch that contained what appeared to be marihuana. Respondent was then arrested for possession of marihuana. A further search of the car’s interior revealed no more contraband, but the officers decided to impound the vehicle and more marihuana was found in the trunk. The Michigan state trial court denied respondent’s motion to suppress the marihuana taken from both the car’s interior and its trunk, and he was convicted of possession of marihuana. The Michigan Court of Appeals affirmed, holding that the search of the passenger compartment was valid as a protective search under Terry v. Ohio, 392 U.S. 1 , and that the search of the trunk was valid as an inventory search under South Dakota v. Opperman, 428 U.S. 364 . However, the Michigan Supreme Court reversed, holding that Terry did not justify the passenger compartment search, and that the marihuana found in the trunk was the “fruit” of the illegal search of the car’s interior.

Held:

1. This Court does not lack jurisdiction to decide the case on the asserted ground that the decision below rests on an adequate and independent state ground. Because of respect for the independence of state courts and the need to avoid rendering advisory opinions, this Court, in determining whether state court references to state law constitute adequate and independent state grounds, will no longer look beyond the opinion under review, or require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, this Court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds, this Court will not undertake to review the decision. In this case, apart from two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Even if it is accepted that the Michigan Constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears that the Michigan Supreme Court rested its decision primarily on federal law. Pp. 1037-1044. 

 

2. The protective search of the passenger compartment of respondent’s car was reasonable under the principles articulated in Terry and other decisions of this Court. Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. If, while conducting a legitimate Terry search of an automobile’s interior, the officer discovers contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. The circumstances of this case justified the officers in their reasonable belief that respondent posed a danger if he were permitted to reenter his vehicle. Nor did they act unreasonably in taking preventive measures to ensure that there were no other weapons within respondent’s immediate grasp before permitting him to reenter his automobile. The fact that respondent was under the officers’ control during the investigative stop does not render unreasonable their belief that he could injure them. Pp. 1045-1052. 

 

3. Because the Michigan Supreme Court suppressed the marihuana taken from the trunk as a fruit of what it erroneously held was an illegal  search of the car’s interior, the case is remanded to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. P. 1053. 

 

413 Mich. 461, 320 N. W. 2d 866, reversed and remanded.

O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined, and in Parts I, III, IV, and V of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 1054. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 1054. STEVENS, J., filed a dissenting opinion, post, p. 1065.

Louis J. Caruso, Solicitor General of Michigan, argued the cause for petitioner. With him on the brief were Frank J. Kelley, Attorney General, and Leonard J. Malinowski, Assistant Attorney General.

David A. Strauss argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Jensen, and Deputy Solicitor General Frey.

James H. Geary argued the cause for respondent. With him on the brief was Joseph J. Jerkins. 

David Crump, Wayne W. Schmidt, and James P. Manak filed a brief for the Gulf & Great Plains Legal Foundation of America et al. as amici curiae urging reversal.

JUSTICE O’CONNOR delivered the opinion of the Court.

In Terry v. Ohio, 392 U.S. 1 (1968), we upheld the validity of a protective search for weapons in the absence of probable cause to arrest because it is unreasonable to deny a police officer the right “to neutralize the threat of physical harm,” id., at 24, when he possesses an articulate suspicion that an individual is armed and dangerous. We did not, however, expressly address whether such a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. In the present case, respondent David Long was convicted for possession of marihuana found by police in the passenger compartment and trunk of the  automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry and other decisions of this Court. We also examine Long’s argument that the decision below rests upon an adequate and independent state ground, and we decide in favor of our jurisdiction.

I

Deputies Howell and Lewis were on patrol in a rural area one evening when, shortly after midnight, they observed a car traveling erratically and at excessive speed. The officers observed the car turning down a side road, where it swerved off into a shallow ditch. The officers stopped to investigate. Long, the only occupant of the automobile, met the deputies at the rear of the car, which was protruding  from the ditch onto the road. The door on the driver’s side of the vehicle was left open.

Deputy Howell requested Long to produce his operator’s license, but he did not respond. After the request was repeated, Long produced his license. Long again failed to respond when Howell requested him to produce the vehicle registration. After another repeated request, Long, who Howell thought “appeared to be under the influence of something,” 413 Mich. 461, 469, 320 N. W. 2d 866, 868 (1982), turned from the officers and began walking toward the open door of the vehicle. The officers followed Long and both observed a large hunting knife on the floorboard of the driver’s side of the car. The officers then stopped Long’s progress and subjected him to a Terry protective patdown, which revealed no weapons.

Long and Deputy Lewis then stood by the rear of the vehicle while Deputy Howell shined his flashlight into the interior of the vehicle, but did not actually enter it. The purpose of Howell’s action was “to search for other weapons.” 413 Mich., at 469, 320 N. W. 2d, at 868. The officer noticed that something was protruding from under the armrest on the front seat. He knelt in the vehicle and lifted the armrest. He saw an open pouch on the front seat, and upon flashing his light on the pouch, determined that it contained what appeared to be marihuana. After Deputy Howell showed the pouch and its contents to Deputy Lewis, Long was arrested for possession of marihuana. A further search of the interior of the vehicle, including the glovebox, revealed neither more contraband nor the vehicle registration. The officers decided to impound the vehicle. Deputy Howell opened the trunk, which did not have a lock, and discovered inside it approximately 75 pounds of marihuana.

The Barry County Circuit Court denied Long’s motion to suppress the marihuana taken from both the interior of the car and its trunk. He was subsequently convicted of possession of marihuana. The Michigan Court of Appeals affirmed Long’s conviction, holding that the search of the passenger compartment was valid as a protective search under Terry, supra, and that the search of the trunk was valid as an inventory search under South Dakota v. Opperman, 428 U.S. 364 (1976). See 94 Mich. App. 338, 288 N. W. 2d 629 (1979). The Michigan Supreme Court reversed. The court held that “the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case.” 413 Mich., at 472, 320 N. W. 2d, at 869. The marihuana found in Long’s trunk was considered by the court below to be the “fruit” of the illegal search of the interior, and was also suppressed. 

We granted certiorari in this case to consider the important question of the authority of a police officer to protect himself by conducting a Terry-type search of the passenger compartment of a motor vehicle during the lawful investigatory stop of the occupant of the vehicle. 459 U.S. 904 (1982).

II

Before reaching the merits, we must consider Long’s argument that we are without jurisdiction to decide this case because the decision below rests on an adequate and independent state ground. The court below referred twice to the State Constitution in its opinion, but otherwise relied exclusively on federal law. Long argues that the Michigan courts have provided greater protection from searches and seizures under the State Constitution than is afforded under the Fourth Amendment, and the references to the State Constitution therefore establish an adequate and independent ground for the decision below.

It is, of course, “incumbent upon this Court . . . to ascertain for itself . . . whether the asserted non-federal ground independently and adequately supports the judgment.” Abie State Bank v. Bryan, 282 U.S. 765, 773(1931). Although we have announced a number of principles in order to help us determine whether various forms of references to state law constitute adequate and independent state grounds, we openly admit that we have thus far not developed a satisfying and consistent approach for resolving this vexing issue. In some instances, we have taken the strict view that if the ground of decision was at all unclear, we would dismiss the case. See, e. g., Lynch v. New York ex rel. Pierson, 293 U.S. 52 (1934). In other instances, we have vacated,  see, e. g., Minnesota v. National Tea Co, 309 U.S. 551 (1940), or continued a case, see, e. g., Herb v. Pitcairn, 324 U.S. 117 (1945), in order to obtain clarification about the nature of a state court decision. See also California v. Krivda, 409 U.S. 33 (1972). In more recent cases, we have ourselves examined state law to determine whether state courts have used federal law to guide their application of state law or to provide the actual basis for the decision that was reached. See Texas v. Brown, 460 U.S. 730, 732 -733, n. 1 (1983) (plurality opinion). Cf. South Dakota v. Neville, 459 U.S. 553, 569 (1983) (STEVENS, J., dissenting). In Oregon v. Kennedy, 456 U.S. 667, 670 -671 (1982), we rejected an invitation to remand to the state court for clarification even when the decision rested in part on a case from the state court, because we determined that the state case itself rested upon federal grounds. We added that “[e]ven if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits.” Id., at 671.

This ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved. Moreover, none of the various methods of disposition that we have employed thus far recommends itself as the preferred method that we should apply to the exclusion of others, and we therefore determine that it is appropriate to reexamine our treatment of this jurisdictional issue in order to achieve the consistency that is necessary.

The process of examining state law is unsatisfactory because it requires us to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties. Vacation and continuance for clarification have also been unsatisfactory both because of the delay and decrease in efficiency of judicial  administration, see Dixon v. Duffy, 344 U.S. 143 (1952), and, more important, because these methods of disposition place significant burdens on state courts to demonstrate the presence or absence of our jurisdiction. See Philadelphia Newspapers, Inc. v. Jerome, 434 U.S. 241, 244(1978) (REHNQUIST, J., dissenting); Department of Motor Vehicles v. Rios, 410 U.S. 425, 427 (1973) (Douglas, J., dissenting). Finally, outright dismissal of cases is clearly not a panacea because it cannot be doubted that there is an important need for uniformity in federal law, and that this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion. We have long recognized that dismissal is inappropriate “where there is strong indication . . . that the federal constitution as judicially construed controlled the decision below.” National Tea Co., supra, at 556.

Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.

This approach obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law. “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action.” National Tea Co., supra, at 557.

The principle that we will not review judgments of state courts that rest on adequate and independent state grounds  is based, in part, on “the limitations of our own jurisdiction.” Herb v. Pitcairn,324 U.S. 117, 125 (1945). The jurisdictional concern is that we not “render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Id., at 126. Our requirement of a “plain statement” that a decision rests upon adequate and independent state grounds does not in any way authorize the rendering of advisory opinions. Rather, in determining, as we must, whether we have jurisdiction to review a case that is alleged to rest on adequate and independent state grounds, see Abie State Bank v. Bryan, 282 U.S., at 773 , we merely assume that there are no such grounds when it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the state court rested its decision primarily on federal law. 

Our review of the decision below under this framework leaves us unconvinced that it rests upon an independent state ground. Apart from its two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Not a single state case was cited to support the state court’s holding that the search of the passenger compartment was unconstitutional. Indeed,  the court declared that the search in this case was unconstitutional because “[t]he Court of Appeals erroneously applied the principles of Terry v. Ohio . . . to the search of the interior of the vehicle in this case.” 413 Mich., at 471, 320 N. W. 2d, at 869. The references to the State Constitution in no way indicate that the decision below rested on grounds in any way independent from the state court’s interpretation of federal law. Even if we accept that the Michigan Constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law.

Rather than dismissing the case, or requiring that the state court reconsider its decision on our behalf solely because of a mere possibility that an adequate and independent ground supports the judgment, we find that we have jurisdiction in the absence of a plain statement that the decision below rested on an adequate and independent state ground. It appears to us that the state court “felt compelled by what it understood to be federal constitutional considerations to construe . . . its own law in the manner it did.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977). 

III

The court below held, and respondent Long contends, that Deputy Howell’s entry into the vehicle cannot be justified under the principles set forth in Terry because “Terry authorized only a limited pat-down search of a person suspected of criminal activity” rather than a search of an area. 413  Mich., at 472, 320 N. W. 2d, at 869 (footnote omitted). Brief for Respondent 10. Although Terry did involve the protective frisk of a person, we believe that the police action in this case is justified by the principles that we have already established in Terry and other cases.

In Terry, the Court examined the validity of a “stop and frisk” in the absence of probable cause and a warrant. The police officer in Terry detained several suspects to ascertain their identities after the officer had observed the suspects for a brief period of time and formed the conclusion that they were about to engage in criminal activity. Because the officer feared that the suspects were armed, he patted down the outside of the suspects’ clothing and discovered two revolvers.

Examining the reasonableness of the officer’s conduct in Terry, we held that 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.’” 392 U.S., at 21 (quoting Camara v. Municipal Court, 387 U.S. 523, 536 -537 (1967). Although the conduct of the officer in Terry involved a “severe, though brief, intrusion upon cherished personal security,” 392 U.S., at 24 -25,  we found that the conduct was reasonable when we weighed the interest of the individual against the legitimate interest in “crime prevention and detection,” id., at 22, and 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.” Id., at 24. When the officer has a reasonable belief “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.” Ibid.

Although Terry itself involved the stop and subsequent patdown search of a person, we were careful to note that “[w]e need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases.” Id., at 29. Contrary to Long’s view, Terry need not be read as restricting the preventative search to the person of the detained suspect. 

In two cases in which we applied Terry to specific factual situations, we recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms,434 U.S. 106 (1977), we held that police may order persons out of  an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Our decision rested in part on the “inordinate risk confronting an officer as he approaches a person seated in an automobile.” Id., at 110. In Adams v. Williams, 407 U.S. 143 (1972), we held that the police, acting on an informant’s tip, may reach into the passenger compartment of an automobile to remove a gun from a driver’s waistband even where the gun was not apparent to police from outside the car and the police knew of its existence only because of the tip. Again, our decision rested in part on our view of the danger presented to police officers in “traffic stop” and automobile situations. 

Finally, we have also expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed. In the Term following Terry, we decided Chimel v. California, 395 U.S. 752 (1969), which involved the limitations imposed on police authority to conduct a search incident to a valid arrest. Relying explicitly on Terry, we held that when an arrest is made, it is reasonable for the arresting officer to search “the arrestee’s person and the area `within his immediate control’ – construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S., at 763 . We reasoned that “[a] gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.” Ibid. In New York v. Belton, 453 U.S. 454 (1981), we determined that the lower courts “have found no workable definition of `the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.” Id., at 460. In order to provide a “workable rule,” ibid., we held that “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within `the area into which an arrestee might reach in order to grab a weapon’ . . . .” Ibid. (quoting Chimel, supra, at 763). We also held that the police may examine the contents of any open or closed container found within the passenger compartment, “for if the passenger compartment is within the reach of the arrestee, so will containers in it be within his reach.” 453 U.S., at 460 (footnote omitted). See also Michigan v. Summers, 452 U.S. 692, 702 (1981).

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry, 392  U.S., at 21. “[T]he 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.” Id., at 27. If a suspect is “dangerous,” he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971); Michigan v. Tyler, 436 U.S. 499, 509 (1978); Texas v. Brown, 460 U.S., at 739 (plurality opinion by REHNQUIST, J.); id., at 746 (POWELL, J., concurring in judgment).

The circumstances of this case clearly justified Deputies Howell and Lewis in their reasonable belief that Long posed a danger if he were permitted to reenter his vehicle. The hour was late and the area rural. Long was driving his automobile at excessive speed, and his car swerved into a ditch. The officers had to repeat their questions to Long, who appeared to be “under the influence” of some intoxicant. Long was not frisked until the officers observed that there was a large knife in the interior of the car into which Long was about to reenter. The subsequent search of the car was restricted to those areas to which Long would generally have immediate control, and that could contain a weapon. The trial court determined that the leather pouch containing  marihuana could have contained a weapon. App. 64a. It is clear that the intrusion was “strictly circumscribed by the exigencies which justifi[ed] its initiation.” Terry, supra, at 26.

In evaluating the validity of an officer’s investigative or protective conduct under Terry, the “[t]ouchstone of our analysis . . . is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’” Pennsylvania v. Mimms, 434 U.S., at 108 -109 (quoting Terry, supra, at 19). In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long’s immediate grasp before permitting him to reenter his automobile. Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.

The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. See 413 Mich., at 472, 320 N. W. 2d, at 869. This reasoning is mistaken in several respects. During any investigative detention, the suspect is “in the control” of the officers in the sense that he “may be briefly detained against his will . . . .” Terry, supra, at 34 (WHITE, J., concurring). Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long’s position break away from police control and retrieve a weapon from his automobile. See United States v. Rainone, 586 F.2d 1132, 1134 (CA7 1978), cert. denied, 440 U.S. 980 (1979). In addition,  if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. United States v. Powless, 546 F.2d 792, 795-796 (CA8), cert. denied, 430 U.S. 910 (1977). Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation “at close range,” Terry, 392 U.S., at 24 , when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a “quick decision as to how to protect himself and others from possible danger . . . .” Id., at 28. In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.

IV

The trial court and the Court of Appeals upheld the search of the trunk as a valid inventory search under this Court’s decision in South Dakota v. Opperman, 428 U.S. 364 (1976). The Michigan Supreme Court did not address this holding, and instead suppressed the marihuana taken from the trunk as a fruit of the illegal search of the interior of the automobile. Our holding that the initial search was justified under Terry makes it necessary to determine whether the trunk search was permissible under the Fourth Amendment. However, we decline to address this question because it was not passed upon by the Michigan Supreme Court, whose decision we review in this case. See Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). We remand this issue to the court below, to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. See, e. g., United States v. Ross, 456 U.S. 798 (1982). 

V

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

It is so ordered. 

Footnotes

It is clear, and the respondent concedes, that if the officers had arrested Long for speeding or for driving while intoxicated, they could have searched the passenger compartment under New York v. Belton, 453 U.S. 454 (1981), and the trunk under United States v. Ross, 456 U.S. 798 (1982), if they had probable cause to believe that the trunk contained contraband. See Tr. of Oral Arg. 41. However, at oral argument, the State informed us that while Long could have been arrested for a speeding violation under Michigan law, he was not arrested because “[a]s a matter of practice,” police in Michigan do not arrest for speeding violations unless “more” is involved. See id., at 6. The officers did issue Long an appearance ticket. The petitioner also confirmed that the officers could have arrested Long for driving while intoxicated but they “would have to go through a process to make a determination as to whether the party is intoxicated and then go from that point.” Ibid.

The court below treated this case as involving a protective search, and not a search justified by probable cause to arrest for speeding, driving while intoxicated, or any other offense. Further, the petitioner does not argue that if probable cause to arrest exists, but the officers do not actually effect the arrest, the police may nevertheless conduct a search as broad as those authorized by Belton and Ross. Accordingly, we do not address that issue.

Chief Justice Coleman dissented, arguing that Terry v. Ohio, 392 U.S. 1 (1968), authorized the area search, and that the trunk search was a valid inventory search. See 413 Mich., at 473-480, 320 N. W. 2d, at 870-873. Justice Moody concurred in the result on the ground that the trunk search was improper. He agreed with Chief Justice Coleman that the interior search was proper under Terry. See 413 Mich., at 480-486, 320 N. W. 2d, at 873-875.

On the first occasion, the court merely cited in a footnote both the State and Federal Constitutions. See id., at 471, n. 4, 320 N. W. 2d, at 869, n. 4. On the second occasion, at the conclusion of the opinion, the court stated: “We hold, therefore, that the deputies’ search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, 11 of the Michigan Constitution.” Id., at 472-473, 320 N. W. 2d, at 870.

For example, we have long recognized that “where the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment.” Fox Film Corp. v. Muller,296 U.S. 207, 210 (1935). We may review a state case decided on a federal ground even if it is clear that there was an available state ground for decision on which the state court could properly have relied. Beecher v. Alabama, 389 U.S. 35, 37 , n. 3 (1967). Also, if, in our view, the state court “`felt compelled by what it understood to be federal constitutional considerations to construe . . . its own law in the manner it did,’” then we will not treat a normally adequate state ground as independent, and there will be no question about our jurisdiction. Delaware v. Prouse, 440 U.S. 648, 653 (1979) (quoting Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977). See also South Dakota v. Neville, 459 U.S. 553, 556 -557, n. 3 (1983). Finally, “where the non-federal ground is so interwoven with the [federal ground] as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain.” Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917).

 Indeed, Dixon v. Duffy is also illustrative of another difficulty involved in our requiring state courts to reconsider their decisions for purposes of clarification. In Dixon, we continued the case on two occasions in order to obtain clarification, but none was forthcoming: “[T]he California court advised petitioner’s counsel informally that it doubted its jurisdiction to render such a determination.” 344 U.S., at 145 . We then vacated the judgment of the state court, and remanded.

There may be certain circumstances in which clarification is necessary or desirable, and we will not be foreclosed from taking the appropriate action.

In Herb v. Pitcairn, 324 U.S., at 128 , the Court also wrote that it was desirable that state courts “be asked rather than told what they have intended.” It is clear that we have already departed from that view in those cases in which we have examined state law to determine whether a particular result was guided or compelled by federal law. Our decision today departs further from Herb insofar as we disfavor further requests to state courts for clarification, and we require a clear and express statement that a decision rests on adequate and independent state grounds. However, the “plain statement” rule protects the integrity of state courts for the reasons discussed above. The preference for clarification expressed in Herb has failed to be a completely satisfactory means of protecting the state and federal interests that are involved.

It is not unusual for us to employ certain presumptions in deciding jurisdictional issues. For instance, although the petitioner bears the burden of establishing our jurisdiction, Durley v. Mayo, 351 U.S. 277, 285 (1956), we have held that the party who alleges that a controversy before us has become moot has the “heavy burden” of establishing that we lack jurisdiction. County of Los Angeles v. Davis, 440 U.S. 625, 631(1979). That is, we presume in those circumstances that we have jurisdiction until some party establishes that we do not for reasons of mootness.

We also note that the rule that we announce today was foreshadowed by our opinions in Delaware v. Prouse,440 U.S. 648 (1979), and Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). In these cases,  the state courts relied on both state and federal law. We determined that we had jurisdiction to decide the cases because our reading of the opinions led us to conclude that each court “felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did.” Zacchini, supra, at 568; Delaware, supra, at 653. In Delaware, we referred to prior state decisions that confirmed our understanding of the opinion in that case, but our primary focus was on the face of the opinion. In Zacchini, we relied entirely on the syllabus and opinion of the state court.

In dissent, JUSTICE STEVENS proposes the novel view that this Court should never review a state court decision unless the Court wishes to vindicate a federal right that has been endangered. The rationale of the dissent is not restricted to cases where the decision is arguably supported by adequate and independent state grounds. Rather, JUSTICE STEVENS appears to believe that even if the decision below rests exclusively on federal grounds, this Court should not review the decision as long as there is no federal right that is endangered.

The state courts handle the vast bulk of all criminal litigation in this country. In 1982, more than 12 million criminal actions (excluding juvenile and traffic charges) were filed in the 50 state court systems and the District of Columbia. See 7 State Court Journal, No. 1, p. 18 (1983). By comparison, approximately 32,700 criminal suits were filed in federal courts during that same year. See Annual Report of the Director of the Administrative Office of the United States Courts 6 (1982). The state courts are required to apply federal constitutional standards, and they necessarily create a considerable body of “federal law” in the process. It is not surprising that this Court has become more interested in the application and development of federal law by state courts in the light of the recent significant expansion of federally created standards that we have imposed on the States.

At oral argument, Long argued that the state court relied on its decision in People v. Reed, 393 Mich. 342, 224 N. W. 2d 867, cert. denied, 422 U.S. 1044 (1975). See Tr. of Oral Arg. 29. However, the court cited that case only in the context of a statement that the State did not seek to justify the search in this case “by reference to other exceptions to the   warrant requirement.” 413 Mich., at 472, 320 N. W. 2d, at 869-870 (footnote omitted). The court then noted that Reed held that “`[a] warrantless search and seizure is unreasonable per se and violates the Fourth Amendment of the United States Constitution and Art. 1, 11 of the state constitution unless shown to be within one of the exceptions to the rule.’” 413 Mich., at 472-473, n. 8, 320 N. W. 2d, at 870, n. 8.

There is nothing unfair about requiring a plain statement of an independent state ground in this case. Even if we were to rest our decision on an evaluation of the state law relevant to Long’s claim, as we have sometimes done in the past, our understanding of Michigan law would also result in our finding that we have jurisdiction to decide this case. Under state search-and-seizure law, a “higher standard” is imposed under Art. 1, 11, of the 1963 Michigan Constitution. See People v. Secrest, 413 Mich. 521, 525, 321 N. W. 2d 368, 369 (1982). If, however, the item seized is, inter  alia, a “narcotic drug . . . seized by a peace officer outside the curtilage of any dwelling house in this state,” Art. 1, 11, of the 1963 Michigan Constitution, then the seizure is governed by a standard identical to that imposed by the Fourth Amendment. See People v. Moore, 391 Mich. 426, 435, 216 N. W. 2d 770, 775 (1974).

Long argues that under the current Michigan Comp. Laws 333.7107 (1979), the definition of a “narcotic” does not include marihuana. The difficulty with this argument is that Long fails to cite any authority for the proposition that the term “narcotic” as used in the Michigan Constitution is dependent on current statutory definitions of that term. Indeed, it appears that just the opposite is true. The Michigan Supreme Court has held that constitutional provisions are presumed “to be interpreted in accordance with existing laws and legal usages of the time” of the passage of the provision. Bacon v. Kent-Ottawa Authority, 354 Mich. 159, 169, 92 N. W. 2d 492, 497 (1958). If the state legislature were able to change the interpretation of a constitutional provision by statute, then the legislature would have “the power of outright repeal of a duly-voted constitutional provision.” Ibid. Applying these principles, the Michigan courts have held that a statute passed subsequent to the applicable state constitutional provision is not relevant for interpreting its Constitution, and that a definition in a legislative Act pertains only to that Act. Jones v. City of Ypsilanti, 26 Mich. App. 574, 182 N. W. 2d 795 (1970). See also Walber v. Piggins, 2 Mich. App. 145, 138 N. W. 2d 772 (1966), aff’d, 381 Mich. 138, 160 N. W. 2d 876 (1968). At the time that the 1963 Michigan Constitution was enacted, it is clear that marihuana was considered a narcotic drug. See 1961 Mich. Pub. Acts, No. 206, 1(f). Indeed, it appears that marihuana was considered a narcotic drug in Michigan until 1978, when it was removed from the narcotic classification. We would conclude that the seizure of marihuana in Michigan is not subject to analysis under any “higher standard” than may be imposed on the seizure of other items. In the light of our holding in Delaware v. Prouse,440 U.S. 648 (1979), that an interpretation of state law in our view compelled by federal constitutional considerations is not an independent state ground, we would have jurisdiction to decide the case.

Although we did not in any way weaken the warrant requirement, we acknowledged that the typical “stop and frisk” situation involves “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 in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Terry, 392 U.S., at 20(footnote omitted). We have emphasized that the propriety of a Terry stop and frisk is to be judged according to whether the officer acted as a “reasonably prudent man” in deciding that the intrusion was justified. Id., at 27. “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.” Adams v. Williams, 407 U.S. 143, 146 (1972).

As Chief Justice Coleman noted in her dissenting opinion in the present case:

“The opinion in Terry authorized the frisking of an overcoat worn by defendant because that was the issue presented by the facts. One could reasonably conclude that a different result would not have been constitutionally required if the overcoat had been carried, folded over the forearm, rather than worn. The constitutional principles stated in Terry would still control.” 413 Mich., at 475-476, 320 N. W. 2d, at 871 (footnote omitted). 

According to one study, “approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings – A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (1963).” Adams v. Williams, supra, at 148, n. 3.

We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop, although the “bright line” that we drew in Belton clearly authorizes such a search whenever officers effect a custodial arrest. An additional interest exists in the arrest context, i. e., preservation of evidence, and this justifies an “automatic” search. However, that additional interest does not exist in the Terry context. A Terry 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. . . . The sole justification of the search . . . is the protection of the police officer and others nearby . . . .” 392 U.S., at 29 . What we borrow now from Chimel v. California, 395 U.S. 752 (1969), and Belton is merely the recognition that part of the reason to allow area searches incident to an arrest is that the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity. This recognition applies as well in the Terry context. However, because the interest in collecting and preserving evidence is not present in the Terry context, we require that officers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry.

Of course, our analysis would apply to justify the search of Long’s person that was conducted by the officers after the discovery of the knife.

Long makes a number of arguments concerning the invalidity of the search of the passenger compartment. The thrust of these argument is that Terry searches are limited in scope and that an area search is fundamentally inconsistent with this limited scope. We have recognized that Terry searches are limited insofar as they may not be conducted in the absence of an articulable suspicion that the intrusion is justified, see, e. g., Sibron v. New York, 392 U.S. 40, 65 (1968), and that they are protective in nature and limited to weapons, see Ybarra v. Illinois, 444 U.S. 85, 93 -94 (1979). However, neither of these concerns is violated by our decision. To engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous.

Long also argues that there cannot be a legitimate Terry search based on the discovery of the hunting knife because Long possessed that weapon legally. See Brief for Respondent 17. Assuming, arguendo, that Long possessed the knife lawfully, we have expressly rejected the view that the validity of a Terry search depends on whether the weapon is possessed in accordance with state law. See Adams v. Williams, 407 U.S., at 146 .

Contrary to JUSTICE BRENNAN’s suggestion in dissent, the reasoning of Terry, Chimel, and Belton points clearly to the direction that we have taken today. Although Chimel involved a full custodial arrest, the rationale for Chimel rested on the recognition in Terry that it is unreasonable to prevent the police from taking reasonable steps to protect their safety.  

JUSTICE BRENNAN suggests that we are expanding the scope of a Terry-type search to include a search incident to a valid arrest. However, our opinion clearly indicates that the area search that we approve is limited to a search for weapons in circumstances where the officers have a reasonable belief that the suspect is potentially dangerous to them. JUSTICE BRENNAN quotes at length from Sibron, but fails to recognize that the search in that case was a search for narcotics, and not a search for weapons.

JUSTICE BRENNAN concedes that “police should not be exposed to unnecessary danger in the performance of their duties,” post, at 1064, but then would require that police officers, faced with having to make quick determinations about self-protection and the defense of innocent citizens in the area, must also decide instantaneously what “less intrusive” alternative exists to ensure that any threat presented by the suspect will be neutralized. Post, at 1065. For the practical reasons explained in Terry, 392 U.S., at 24 , 28, we have never required police to adopt alternative measures to avoid a legitimate Terry-type intrusion.

Long suggests that the trunk search is invalid under state law. See Tr. of Oral Arg. 41, 43-44. The Michigan Supreme Court is, of course, free to determine the validity of that search under state law.

JUSTICE BLACKMUN, concurring in part and concurring in the judgment.

I join Parts I, III, IV, and V of the Court’s opinion. While I am satisfied that the Court has jurisdiction in this particular case, I do not join the Court, in Part II of its opinion, in fashioning a new presumption of jurisdiction over cases coming here from state courts. Although I agree with the Court that uniformity in federal criminal law is desirable, I see little efficiency and an increased danger of advisory opinions in the Court’s new approach.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

The Court today holds that “the protective search of the passenger compartment” of the automobile involved in this case “was reasonable under the principles articulated in Terry and other decisions of this Court.” Ante, at 1035. I disagree. Terry v. Ohio, 392 U.S. 1 (1968), does not support the Court’s conclusion and the reliance on “other decisions” is patently misplaced. Plainly, the Court is simply continuing the process of distorting Terry beyond recognition and forcing it into service as an unlikely weapon against the Fourth Amendment’s fundamental requirement that searches and seizures be based on probable cause. See United States v. Place, 462 U.S. 696, 714 -717 (1983) (BRENNAN, J., concurring in result). I, therefore, dissent.    

On three occasions this Term I have discussed the limited scope of the exception to the probable-cause requirement created by Terry and its progeny. See Florida v. Royer, 460 U.S. 491, 509 -511 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson, 461 U.S. 352, 364 -365 (1983) (BRENNAN, J., concurring); United States v. Place, supra, at 711-717 (BRENNAN, J., concurring in result). I will not repeat those discussions here and note only that “Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion.” 462 U.S., at 714 . However, the Court’s opinion compels a detailed review of Terry itself.

In Terry, the Court confronted the “quite narrow question” of “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.” 392 U.S., at 15 (emphasis supplied). Because the Court was dealing “with an entire rubric of police conduct . . . which historically [had] not been, and as a practical matter could not be, subjected to the warrant procedure,” id., at 20, the Court tested the conduct at issue “by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Ibid. (footnote omitted). In considering the “reasonableness” of the conduct, the Court balanced “`the need to search [or seize] against the invasion which the search [or seizure] entails.’” Id., at 21, quoting Camara v. Municipal Court, 387 U.S. 523, 534 -535, 536-537 (1967). It deserves emphasis that in discussing the “invasion” at issue, the Court stated that “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security . . . .”392 U.S., at 24 -25 (emphasis supplied). Ultimately, the Court concluded 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.” Id., at 27 (emphasis supplied). The Court expressed its holding as follows:

“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.” Id., at 30 (emphasis supplied). 

It is clear that Terry authorized only limited searches of the person for weapons. In light of what Terry said, relevant portions of which the Court neglects to quote, the Court’s suggestion that “Terry need not be read as restricting the preventive search to the person of the detained suspect,” ante, at 1047 (footnote omitted), can only be described as disingenuous. Nothing in Terry authorized police officers to search a suspect’s car based on reasonable suspicion. The Court confirmed this this very Term in United States v. Place, supra, where it described the search authorized by Terry as a “limited search for weapons, or `frisk’ . . . .” 462 U.S., at 702 . The search at issue in this case is a far cry from a “frisk” and certainly was not “limited.”    

The Court’s reliance on Chimel v. California, 395 U.S. 752 (1969), and New York v. Belton, 453 U.S. 454 (1981), as support for its new “area search” rule within the context of a Terry stop is misplaced. In Chimel, the Court addressed the scope of a search incident to a lawful arrest, 395 U.S., at 753 , and held invalid the search at issue there because it “went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Id., at 768. Chimel stressed the need to limit the scope of searches incident to arrest and overruled two prior decisions of this Court validating overly broad searches. Ibid.

In Belton, the Court considered the scope of a search incident to the lawful custodial arrest of an occupant of an automobile. 453 U.S., at 455 . In this “particular and problematic context,” id., at 460, n. 3, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id., at 460 (footnote omitted). 

The critical distinction between this case and Terry on the one hand, and Chimel and Belton on the other, is that the latter two cases arose within the context of lawful custodial arrests supported by probable cause. The Court in Terry expressly recognized the difference between a search incident to arrest and the “limited search for weapons,” 392 U.S., at 25 , involved in that case. The Court stated:  

“[A search incident to arrest], although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, . . . is also justified on other grounds, . . . 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. . . . 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. 

“. . . 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.” Id., at 25-26 (footnote omitted). 

In United States v. Robinson, 414 U.S. 218 (1973), the Court relied on the differences between searches incident to lawful custodial arrests and Terry “stop-and-frisk” searches to reject an argument that the limitations established in Terry should be applied to a search incident to arrest. 414 U.S., at 228 . The Court noted that “Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other,” id., at 233, and described Terry as involving “stricter . . . standards,” 414 U.S., at 234 , than those governing searches incident to arrest. The Court went on to state: 

“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable’ search under that Amendment.” Id., at 235. 

See also id., at 237-238 (POWELL, J., concurring) (“The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest” (footnote omitted)); Gustafson v. Florida, 414 U.S. 260, 264 (1973).

As these cases recognize, there is a vital difference between searches incident to lawful custodial arrests and Terry protective searches. The Court deliberately ignores that difference in relying on principles developed within the context of intrusions supported by probable cause to arrest to construct an “area search” rule within the context of a Terry stop.

The Court denies that an “area search” is fundamentally inconsistent with Terry, see ante, at 1052, n. 16, stating:

“We have recognized that Terry searches are limited insofar as they may not be conducted in the absence of an articulable suspicion that the intrusion is justified, see e. g., Sibron v. New York, 392 U.S. 40, 65 (1968), and that they are protective in nature and limited to weapons, see Ybarra v. Illinois, 444 U.S. 85, 93 -94 (1979). However, neither of these concerns is violated by our decision. To engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous.” Ibid.  

This patently is no answer: respondent’s argument relates to the scope of the search, not to the standard that justifies it. The Court flouts Terry’s holding that Terry searches must be carefully limited in scope. See supra, at 1056. Indeed, the page in Sibron v. New York, 392 U.S. 40 (1968), cited by the Court states:

“Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception – the protection of the officer by disarming a potentially dangerous man.” Id., at 65 (emphasis supplied). 

As this passage makes clear, the scope of a search is determined not only by reference to its purpose, but also by reference to its intrusiveness. Yet the Court today holds that a search of a car (and the containers within it) that is not even occupied by the suspect is only as intrusive as, or perhaps less intrusive than, thrusting a hand into a pocket after an  initial patdown has suggested the presence of concealed objects that might be used as weapons.

The Court suggests no limit on the “area search” it now authorizes. The Court states that a “search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Ante, at 1049 (footnote omitted). Presumably a weapon “may be placed or hidden” anywhere in a car. A weapon also might be hidden in a container in the car. In this case, the Court upholds the officer’s search of a leather pouch because it “could have contained a weapon.” Ante, at 1050-1051 (footnote omitted). In addition, the Court’s requirement that an officer have a reasonable suspicion that a suspect is armed and dangerous does little to check the initiation of an area search. In this case, the officers saw a hunting knife in the car, see ante, at 1036, 1050, but the Court does not base its holding that the subsequent search was permissible on the ground that possession of the knife may have been illegal under state law. See ante, at 1052-1053, n. 16. An individual can lawfully possess many things that can be used as weapons. A hammer, or a baseball bat, can be used as a very effective weapon. Finally, the Court relies on the following facts to conclude that the officers had a reasonable suspicion that respondent was presently dangerous: the hour was late; the area was rural; respondent had been driving at an excessive speed; he had been involved in an accident; he was not immediately responsive to the officers’ questions; and he appeared to be under the influence of some intoxicant. Ante, at 1050. Based on these facts, one might reasonably conclude that respondent was drunk. A drunken driver is indeed dangerous while driving, but not while stopped on the roadside by  the police. Even when an intoxicated person lawfully has in his car an object that could be used as a weapon, it requires imagination to conclude that he is presently dangerous. Even assuming that the facts in this case justified the officers’ initial “frisk” of respondent, see ante, at 1035-1036, 1050-1051, and n. 15, they hardly provide adequate justification for a search of a suspect’s car and the containers within it. This represents an intrusion not just different in degree, but in kind, from the intrusion sanctioned by Terry. In short, the implications of the Court’s decision are frightening.

The Court also rejects the Michigan Supreme Court’s view that it “was not reasonable for the officers to fear that [respondent] could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile.” Ante, at 1051. In this regard, the Court states:

“[W]e stress that a Terry investigation, such as the one that occurred here, involves a police investigation `at close range,’. . . when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a `quick decision as to how to protect himself and others from possible danger.’ . . . In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.” Ante, at 1052 (footnote omitted; emphasis in original). 

Putting aside the fact that the search at issue here involved a far more serious intrusion than that “involved in a Terry encounter,” see ibid., and as such might suggest the need for resort to “alternative means,” the Court’s reasoning is perverse. The Court’s argument in essence is that the absence of probable cause to arrest compels the conclusion that a broad search, traditionally associated in scope with a search incident to arrest, must be permitted based on reasonable suspicion. But United States v. Robinson, stated: “It is  scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.” 414 U.S., at 234 -235. In light of Robinson’s observation, today’s holding leaves in grave doubt the question of whether the Court’s assessment of the relative dangers posed by given confrontations is based on any principled standard.

Moreover, the Court’s reliance on a “balancing” of the relevant interests to justify its decision, see ante, at 1051, is certainly inappropriate. In Dunaway v. New York, 442 U.S. 200 (1979), the Court stated that “[t]he narrow intrusions involved in [Terry and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the `long-prevailing standards’ of probable cause, . . . only because these intrusions fell far short of the kind of intrusion associated with an arrest.” Id., at 212. The intrusion involved in this case is precisely “the kind of intrusion associated with an arrest.” There is no justification, therefore, for “balancing” the relevant interests.

In sum, today’s decision reflects once again the threat to Fourth Amendment values posed by “balancing.” See United States v. Place, 462 U.S., at 717 -719 (BRENNAN, J., concurring in result). As Justice Frankfurter stated in United States v. Rabinowitz, 339 U.S. 56 (1950):

“To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an `unreasonable search’ is forbidden – that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response.” Id., at 83 (dissenting opinion).   

Hornbook law has been that “the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so.” New York v. Belton, 453 U.S., at 457 . While under some circumstances the police may search a car without a warrant, see, e. g., Carroll v. United States, 267 U.S. 132(1925), “the exception to the warrant requirement established in Carroll . . . applies only to searches of vehicles that are supported by probable cause.” United States v. Ross, 456 U.S. 798, 809 (1982) (footnote omitted). “[T]he Court in Carroll emphasized the importance of the requirement that officers have probable cause to believe that the vehicle contains contraband.” Id., at 807-808. See also Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973) (“Automobile or no automobile, there must be probable cause for the search” (footnote omitted)). Today the Court discards these basic principles and employs the very narrow exception established by Terry “to swallow the general rule that Fourth Amendment [searches of cars] are `reasonable’ only if based on probable cause.” Dunaway v. New York, supra, at 213. See also United States v. Place, supra, at 718-719 (BRENNAN, J., concurring in result).

Today’s decision disregards the Court’s warning in Almeida-Sanchez: “The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.”413 U.S., at 273 . Of course, police should not be exposed to unnecessary danger in the performance of their duties. But a search of a car and the containers within it based on nothing more than reasonable suspicion, even under the circumstances present   here, cannot be sustained without doing violence to the requirements of the Fourth Amendment. There is no reason in this case why the officers could not have pursued less intrusive, but equally effective, means of insuring their safety. Cf. United States v. Place, supra, at 715-716; Florida v. Royer, 460 U.S., at 511 , n. (BRENNAN, J., concurring in result). The Court takes a long step today toward “balancing” into oblivion the protections the Fourth Amendment affords. I dissent, for as Justice Jackson said in Brinegar v. United States, 338 U.S. 160 (1949):

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