Dunaway v. New York, 442 U.S. 200 (1979)

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

If the Court did no more in this case than it announced in the opening sentence of its opinion --

decide . . . the question reserved 10 years ago in Morales v. New York, 396 U.S. 102 (1969), namely, "the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest"

-- I would have little difficulty joining its opinion. The decision of this question, however, does not, contrary to the implication in the Court’s opening sentence, decide this case. For the Court goes on to conclude that petitioner Dunaway was, in fact, "seized" within the meaning of the Fourth Amendment, and that the connection between Dunaway’s purported detention and the evidence obtained therefrom was not sufficiently attenuated as to dissipate the taint of the alleged unlawful police conduct. Ante at 207, 216-219. I cannot agree with either conclusion, and accordingly, I dissent.

I

There is obviously nothing in the Fourth Amendment that prohibits police from calling from their vehicle to a particular individual on the street and asking him to come over and talk with them; nor is there anything in the Fourth Amendment that prevents the police from knocking on the door of a person’s house and when the person answers the door, inquiring whether he is willing to answer questions that they wish to put to him. "Obviously, not all personal intercourse between policemen and citizens involves `seizures’ of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). Voluntary questioning not involving any "seizure" for Fourth Amendment purposes may take place under any number of varying circumstances. And the occasions will not be few when a particular individual agrees voluntarily to answer questions that the police wish to put to him either on the street at the station, or in his house, and later regrets his willingness to answer those questions. However, such morning-after regrets do not render involuntary responses that were voluntary at the time they were made. In my view, this is a case where the defendant voluntarily accompanied the police to the station to answer their questions.

In Terry v. Ohio, the Court set out the test for determining whether a person has been "seized" for Fourth Amendment purposes.

Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.

Ibid. In this case, three police officers were dispatched to petitioner’s house to question him about his participation in a robbery. According to the testimony of the police officers, one officer approached a house where petitioner was thought to be located and knocked on the door. When a person answered the door, the officer identified himself and asked the individual his name. App. 97-98. After learning that the person who answered the door was petitioner, the officer asked him if he would accompany the officers to police headquarters for questioning, and petitioner responded that he would. Id. at 89-90; see 61 App.Div.2d 299, 301, 402 N.Y.S.2d 490, 491 (1978). Petitioner was not told that he was under arrest or in custody, and was not warned not to resist or flee. No weapons were displayed, and petitioner was not handcuffed. Each officer testified that petitioner was not touched or held during the trip downtown; his freedom of action was not in any way restrained by the police. App. 78-79, 99. In short, the police behavior in this case was entirely free of "physical force or show of authority."

The Court, however, categorically states in text that

[t] here can be little doubt that petitioner was "seized" in the Fourth Amendment sense when he was taken involuntarily to the police station.

Ante at 207. In an accompanying footnote, the Court states:

Respondent contends that petitioner accompanied the police voluntarily, and therefore was not "seized." . . . The County Court found otherwise . . . , and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion.

Ante at 207 n. 6. The Court goes on to cite a commentary from the Tentative Draft of the ALI Model Code of Pre-Arraignment Procedure to the effect that a

request to come to [the] police station "may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen."

Ibid.

The Court’s heavy reliance on the conclusions of the Monroe County Court on this issue is misplaced, however. That court clearly did not apply the Terry standard in determining whether there had been a seizure. Instead, that court’s conclusions were based solely on the facts that petitioner was in the physical custody of detectives until he reached police headquarters, and that

had he attempted to leave the company of the said detectives, they would have physically restrained him (per stipulation of People at conclusion of hearing).

App. 117. But the fact that the officers accompanied petitioner from his house to the station in no way vitiates the State’s claim that petitioner acted voluntarily. Similarly, the unexpressed intentions of police officers as to hypothetical situations have little bearing on the question whether the police conduct, objectively viewed, restrained petitioner’s liberty by show of force or authority.

The Appellate Division’s opinion also can be of no assistance to the Court. The Court’s opinion characterizes the Appellate Division’s treatment of the case "as an involuntary detention justified by reasonable suspicion." Ante at 207 n. 6. But the Appellate Division did not accept the County Court’s conclusion that petitioner did not voluntarily accompany the police to the station. To the contrary, in its recitation of the facts, the Appellate Division recites the officers’ testimony that petitioner voluntarily agreed to come downtown to talk with them. 61 App.Div.2d at 301, 302, 402 N.Y.S.2d at 491, 492. That the Appellate Division found that it was able to resolve the case on the basis of the Court of Appeals’ decision in People v. Morales, 42 N.Y.2d 129, 366 N.E.2d 248 (1977), does not mean that the Appellate Division decided that petitioner had been "seized" within the meaning of the Fourth Amendment.

Finally, the Court quotes the Model Code for Pre-Arraignment Procedure to support its assertion. Ante at 207 n. 6. I do not dispute the fact that a police request to come to the station may indeed be an "awesome experience." But I do not think that that fact alone means that, in every instance where a person assents to a police request to come to headquarters, there has been a "seizure" within the meaning of the Fourth Amendment. The question turns on whether the officer’s conduct is objectively coercive or physically threatening, not on the mere fact that a person might in some measure feel cowed by the fact that a request is made by a police officer. Cf. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).{1}

Therefore, although I agree that the police officers in this case did not have that degree of suspicion or probable cause that would have justified them in physically compelling petitioner to accompany them to the police station for questioning, I do not believe that the record demonstrates as a fact that this is what happened. No involuntary detention for questioning was shown to have taken place. The Fourth Amendment, accordingly, does not require suppression of petitioner’s statements.

II

Assuming, arguendo, that there was a "seizure" in this case, I still cannot agree with the Court that the Fourth Amendment requires suppression of petitioner’s statements and sketches. Relying on Brown v. Illinois, 422 U.S. 590 (1975), the Court concludes that this evidence must be suppressed, primarily, it seems, because no intervening events broke the connection between petitioner’s detention and his confession. Ante at 219. In my view, the connection between petitioner’s allegedly unlawful detention and the incriminating statements and sketches is sufficiently attenuated to permit their use at trial. See Wong Sun v. United States, 371 U.S. 471 (1963).

In Brown v. Illinois, supra, we identified several factors to be considered in determining whether inculpatory statements were sufficiently a product of free will to be admissible under the Fourth Amendment. The voluntariness of the statements is a threshold requirement. That Miranda warnings are given is "an important factor." 422 U.S. at 603-604. Also relevant are

[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct.

Ibid. But the Court did not assign equal weight to each of these factors. Given the deterrent purposes of the exclusionary rule, the "purpose and flagrancy" of the police conduct is, in my view, the most important factor. Where police have acted in good faith and not in a flagrant manner, I would require no more than that proper Miranda warnings be given and that the statement be voluntary within the meaning of the Fifth Amendment. Brown v. Illinois, supra, at 612 (POWELL, J., concurring in part).

Absent aggravating circumstances, I would consider a statement given at the station house after one has been advised of Miranda rights to be sufficiently removed from the immediate circumstances of the illegal arrest to justify its admission at trial.

Ibid.

The Court concedes that petitioner received proper Miranda warnings and that his statements were "voluntary" for purposes of the Fifth Amendment. Ante at 216. And the police acted in good faith. App. 61; see United States v. Peltier, 422 U.S. 531, 536-537 (1975). At the time of petitioner’s detention, the New York Court of Appeals had held that custodial questioning on less than probable cause for an arrest was permissible under the Fourth Amendment. People v. Morales, 22 N.Y.2d 55, 238 N.E.2d 307 (1968).{2} Petitioner testified that the police never threatened or abused him. App. 35. Petitioner voluntarily gave his first statement to police about an hour after he reached the police station, and then gave another statement to police the following day. Contrary to the Court’s suggestion, the police conduct in this case was in no manner as flagrant as that of the police in Brown v. Illinois, supra.See 422 U.S. at 605; n. 1, supra. Thus, in my view, the record convincingly demonstrates that the statements and sketches given police by petitioner were of sufficient free will as to purge the primary taint of his alleged illegal detention. I would, therefore, affirm the judgment of the Appellate Division of the Supreme Court of New York.