The Supreme Court 's May 28, 1996, ruling that federal appellate judges should conduct a new review on whether police had sufficient grounds to conduct a search without a warrant. The high court by an 8-1 vote in a drug search case set out the standard to be used in determining if there had been reasonable suspicion by the police to stop and make a search without a warrant. The case involved two men who pleaded guilty to drug possession charges in federal court in Wisconsin. Ismael Ornelas-Ledesma was sentenced to 60 months in prison and Saul Ornelas received a 63-month prison term.
SUPREME COURT OF THE UNITED STATES
Syllabus
ORNELAS ET AL.
v.
UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 95-5257. Argued March 26, 1996-Decided May 28, 1996
In denying petitioners' motion to suppress cocaine found in their car,
the District Court ruled that the police had reasonable suspicion to
stop and question petitioners, and probable cause to remove one of
the interior panels where a package containing the cocaine was
found. The Court of Appeals ultimately affirmed both
determinations, reviewing each "deferentially," and "for clear error,"
and finding no clear error in either instance.
Held: The ultimate questions of reasonable suspicion to stop and
probable cause to make a warrantless search should be reviewed de
novo. The principal components of either inquiry are (1) a
determination of the historical facts leading up to the stop or search,
and (2) a decision on the mixed question of law and fact whether the
historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to reasonable suspicion or to
probable cause. Independent appellate review of the latter
determination is consistent with the position taken by this Court, see,
e.g., Brinegar v. United States, 338 U. S. 160, 160; will prevent
unacceptably varied results based on the interpretation of similar facts
by different trial judges, see id., at 171; is necessary if appellate
courts are to maintain control of, and to clarify, the pertinent legal
rules, see Miller v. Fenton, 474 U. S. 104, 114; and will tend to
unify precedent and to provide police with a defined set of rules
which, in most instances, will make it possible to reach a correct
determination beforehand as to whether an invasion of privacy is
justified in the interest of law enforcement, see, e.g., New York v.
Belton, 453 U. S. 454, 458. However, a reviewing court should
take care both to review findings of historical fact only for clear error
and to give due weight to inferences drawn therefrom by resident
judges, who view such facts in light of the community's distinctive
features and events, and by local police, who view the facts through
the lens of their experience and expertise. Pp. 5-10.
16 F. 3d 714 and 52 F. 3d 328, vacated and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS,
GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a
dissenting opinion.
______________________________________________________
__
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Wash-ington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 95-5257
SAUL ORNELAS AND ISMAEL ORNELAS-LEDESMA,
PETITIONERS
v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
[May 28, 1996]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioners each pleaded guilty to possession of cocaine with intent to
distribute. They reserved their right to appeal the District Court's
denial of their motion to suppress the cocaine found in their car. The
District Court had found reasonable suspicion to stop and question
petitioners as they entered their car, and probable cause to remove
one of the interior panels where a package containing two kilos of
cocaine was found. The Court of Appeals opined that the findings of
reasonable suspicion to stop, and probable cause to search, should be
reviewed "deferentially," and "for clear error." We hold that the
ultimate questions of reasonable suspicion and probable cause to
make a warrantless search should be reviewed de novo.
The facts are not disputed. In the early morning of a December day
in 1992, Detective Michael Pautz, a 20-year veteran of the Milwaukee
County Sheriff's Department with 2 years specializing in drug
enforcement, was conducting drug-interdiction surveillance in
downtown Milwaukee. Pautz noticed a 1981 two-door Oldsmobile
with California license plates in a motel parking lot. The car attracted
Pautz's attention for two reasons: because older model, two-door
General Motors cars are a favorite with drug couriers because it is
easy to hide things in them; and because California is a "source State"
for drugs. Detective Pautz radioed his dispatcher to inquire about the
car's registration. The dispatcher informed Pautz that the owner was
either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San
Jose, California; Pautz was unsure which name the dispatcher gave.
Detective Pautz checked the motel registry and learned that an Ismael
Ornelas accompanied by a second man had registered at 4:00 a.m.,
without reservations.
Pautz called for his partner, Donald Hurrle, a detective with
approximately 25 years of law enforcement experience, assigned for
the past 6 years to the drug enforcement unit. When Hurrle arrived at
the scene, the officers contacted the local office of the Drug
Enforcement Administration (DEA) and asked DEA personnel to run
the names Miguel Ledesma Ornelas and Ismael Ornelas through the
Narcotics and Dangerous Drugs Information System (NADDIS), a
federal database of known and suspected drug traffickers. Both
names appeared in NADDIS. The NADDIS report identified Miguel
Ledesma Ornelas as a heroin dealer from El Centro, California, and
Ismael Ornelas, Jr. as a cocaine dealer from Tucson, Arizona. The
officers then summoned Deputy Luedke and the department's drug-
sniffing dog, Merlin. Upon their arrival, Detective Pautz left for
another assignment. Detective Hurrle informed Luedke of what they
knew and together they waited.
Sometime later, petitioners emerged from the motel and got into the
Oldsmobile. Detective Hurrle approached the car, identified himself
as a police officer, and inquired whether they had any illegal drugs or
contraband. Petitioners answered "No." Hurrle then asked for
identification and was given two California driver's licenses bearing
the names Saul Ornelas and Ismael Ornelas. Hurrle asked them if he
could search the car and petitioners consented. The men appeared
calm, but Ismael was shaking somewhat. Deputy Luedke, who over
the past nine years had searched approximately 2,000 cars for
narcotics, searched the Oldsmobile's interior. He noticed that a panel
above the right rear passenger armrest felt somewhat loose and
suspected that the panel might have been removed and contraband
hidden inside. Luedke would testify later that a screw in the door
jam adjacent to the loose panel was rusty, which to him meant that
the screw had been removed at some time. Luedke dismantled the
panel and discovered two kilograms of cocaine. Petitioners were
arrested.
Petitioners filed pretrial motions to suppress, alleging that the police
officers violated their Fourth Amendment rights when the officers
detained them in the parking lot and when Deputy Luedke searched
inside the panel without a warrant.1 The Government conceded in
the court below that when the officers approached petitioners in the
parking lot, a reasonable person would not have felt free to leave, so
the encounter was an investigatory stop. See 16 F. 3d 714, 716
(CA7 1994). An investigatory stop is permissible under the Fourth
Amendment if supported by reasonable suspicion, Terry v. Ohio,
392 U. S. 1 (1968), and a warrantless search of a car is valid if
based on probable cause, California v. Acevedo, 500 U. S. 565,
569-570 (1991).
After conducting an evidentiary hearing, the Magistrate Judge
concluded that the circumstances gave the officers reasonable
suspicion, but not probable cause. The Magistrate found, as a
finding of fact, that there was no rust on the screw and hence
concluded that Deputy Luedke had an insufficient basis to conclude
that drugs would be found within the panel. The Magistrate
nonetheless recommended that the District Court deny the
suppression motions because he thought, given the presence of the
drug-sniffing dog, that the officers would have found the cocaine by
lawful means eventually and therefore the drugs were admissible
under the inevitable discovery doctrine. See Nix v. Williams, 467 U.
S. 431 (1984).
The District Court adopted the Magistrate's recommendation with
respect to reasonable suspicion, but not its reasoning as to probable
cause. The District Court thought that the model, age, and source-
State origin of the car, and the fact that two men traveling together
checked into a motel at 4 o'clock in the morning without
reservations, formed a drug-courier profile and that this profile
together with the NADDIS reports gave rise to reasonable suspicion
of drug-trafficking activity; in the court's view, reasonable suspicion
became probable cause when Deputy Luedke found the loose panel.
Accordingly, the court ruled that the cocaine need not be excluded.2
The Court of Appeals reviewed deferentially the District Court's
determinations of reasonable suspicion and probable cause; it would
reverse only upon a finding of "clear error."3 16 F. 3d, at 719. The
court found no clear error in the reasonable-suspicion analysis and
affirmed that determination. Ibid. With respect to the probable-cause
finding, however, the court remanded the case for a determination on
whether Luedke was credible when testifying about the loose panel.
Id., at 721-722.
On remand, the Magistrate Judge expressly found the testimony
credible. The District Court accepted the finding, and once again
ruled that probable cause supported the search. The Seventh Circuit
held that determination not clearly erroneous. Judgt. order reported
at 52 F. 3d 328 (1995).
We granted certiorari to resolve the conflict among the Circuits over
the applicable standard of appellate review. 516 U. S. ___ (1996).4
Articulating precisely what "reasonable suspicion" and "probable
cause" mean is not possible. They are commonsense, nontechnical
conceptions that deal with "`the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.'" Illinois v. Gates, 462 U. S. 213, 231 (1983)
(quoting Brinegar v. United States, 338 U. S. 160, 176 (1949)); see
United States v. Sokolow, 490 U. S. 1, 7-8 (1989). As such, the
standards are "not readily, or even usefully, reduced to a neat set of
legal rules." Gates, supra, at 232. We have described reasonable
suspicion simply as "a particularized and objective basis" for
suspecting the person stopped of criminal activity, United States v.
Cortez, 449 U. S. 411, 417-418 (1981), and probable cause to
search as existing where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found, see Brinegar, supra,
at 175-176; Gates, supra, at 238. We have cautioned that these two
legal principles are not "finely-tuned standards," comparable to the
standards of proof beyond a reasonable doubt or of proof by a
preponderance of the evidence. Gates, supra, at 235. They are
instead fluid concepts that take their substantive content from the
particular contexts in which the standards are being assessed. Gates,
supra, at 232; Brinegar, supra, at 175 ("The standard of proof [for
probable cause] is . . . correlative to what must be proved"); Ker v.
California, 374 U. S. 23, 33 (1963) ("This Cour[t] [has a] long-
established recognition that standards of reasonableness under the
Fourth Amendment are not susceptible of Procrustean application";
"[e]ach case is to be decided on its own facts and circumstances"
(internal quotation marks omitted)); Terry v. Ohio, supra, at 29 (the
limitations imposed by the Fourth Amendment "will have to be
developed in the concrete factual circumstances of individual cases").
The principal components of a determination of reasonable suspicion
or probable cause will be the events which occurred leading up to the
stop or search, and then the decision whether these historical facts,
viewed from the standpoint of an objectively reasonable police
officer, amount to reasonable suspicion or to probable cause. The
first part of the analysis involves only a determination of historical
facts, but the second is a mixed question of law and fact: "[T]he
historical facts are admitted or established, the rule of law is
undisputed, and the issue is whether the facts satisfy the [relevant]
statutory [or constitutional] standard, or to put it another way,
whether the rule of law as applied to the established facts is or is not
violated." Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19
(1982).
We think independent appellate review of these ultimate
determinations of reasonable suspicion and probable cause is
consistent with the position we have taken in past cases. We have
never, when reviewing a probable-cause or reasonable-suspicion
determination ourselves, expressly deferred to the trial court's
determination. See, e.g., Brinegar, supra (rejecting district court's
conclusion that the police lacked probable cause); Alabama v. White,
496 U. S. 325 (1990) (conducting independent review and finding
reasonable suspicion). A policy of sweeping deference would
permit, "[i]n the absence of any significant difference in the facts,"
"the Fourth Amendment's incidence [to] tur[n] on whether different
trial judges draw general conclusions that the facts are sufficient or
insufficient to constitute probable cause." Brinegar, supra, at 171.
Such varied results would be inconsistent with the idea of a unitary
system of law. This, if a matter-of-course, would be unacceptable.
In addition, the legal rules for probable cause and reasonable
suspicion acquire content only through application. Independent
review is therefore necessary if appellate courts are to maintain
control of, and to clarify the legal principles. See Miller v. Fenton,
474 U. S. 104, 114 (1985) (where the "relevant legal principle can
be given meaning only through its application to the particular
circumstances of a case, the Court has been reluctant to give the trier
of fact's conclusions presumptive force and, in so doing, strip a
federal appellate court of its primary function as an expositor of
law").
Finally, de novo review tends to unify precedent and will come
closer to providing law enforcement officers with a defined " `set of
rules which, in most instances, makes it possible to reach a correct
determination beforehand as to whether an invasion of privacy is
justified in the interest of law enforcement.' " New York v. Belton,
453 U. S. 454, 458 (1981); see also Thompson v. Keohane, 516 U.
S. ___, ___ (1995) (slip op., at 16) ("[T]he law declaration aspect of
independent review potentially may guide police, unify precedent,
and stabilize the law," and those effects "serve legitimate law
enforcement interests").
It is true that because the mosaic which is analyzed for a reasonable-
suspicion or probable-cause inquiry is multi-faceted, "one
determination will seldom be a useful `precedent' for another,"
Gates, supra, at 238, n. 11. But there are exceptions. For instance,
the circumstances in Brinegar, supra, and Carroll v. United States,
267 U. S. 132 (1925), were so alike that we concluded that reversing
the Circuit Court's decision in Brinegar was necessary to be faithful
to Carroll. Brinegar, supra, at 178 ("Nor... can we find in the
present facts any substantial basis for distinguishing this case from
the Carroll case"). We likewise recognized the similarity of facts in
United States v. Sokolow, 490 U. S. 1 (1989) and Florida v. Royer,
460 U. S. 491 (1983) (in both cases, the defendant traveled under an
assumed name; paid for an airline ticket in cash with a number of
small bills; traveled from Miami, a source city for illicit drugs; and
appeared nervous in the airport). The same was true both in United
States v. Ross, 456 U. S. 798 (1982) and California v. Acevedo,
500 U. S. 565 (1991), see id., at 572 ("The facts in this case closely
resemble the facts in Ross"); and in United States v. Mendenhall,
446 U. S. 544 (1980), and Reid v. Georgia, 448 U. S. 438 (1980),
see id., at 443 (Powell, J., concurring) ("facts [in Mendenhall] [are]
remarkably similar to those in the present case"). And even where
one case may not squarely control another one, the two decisions
when viewed together may usefully add to the body of law on the
subject.
The Court of Appeals, in adopting its deferential standard of review
here, reasoned that de novo review for warrantless searches would
be inconsistent with the "`great deference'" paid when reviewing a
decision to issue a warrant, see Illinois v. Gates, 462 U. S. 213
(1983). See United States v. Spears, 965 F. 2d 262, 269-271 (CA7
1992). We cannot agree. The Fourth Amendment demonstrates a
"strong preference for searches conducted pursuant to a warrant,"
Gates, supra, at 236, and the police are more likely to use the warrant
process if the scrutiny applied to a magistrate's probable-cause
determination to issue a warrant is less than that for warrantless
searches. Were we to eliminate this distinction, we would eliminate
the incentive.
We therefore hold that as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo
on appeal. Having said this, we hasten to point out that a reviewing
court should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers.
A trial judge views the facts of a particular case in light of the
distinctive features and events of the community; likewise a police
officer views the facts through the lens of his police experience and
expertise. The background facts provide a context for the historical
facts, and when seen together yield inferences that deserve deference.
For example, what may not amount to reasonable suspicion at a
motel located alongside a transcontinental highway at the height of
the summer tourist season may rise to that level in December in
Milwaukee. That city is unlikely to have been an overnight stop
selected at the last minute by a traveler coming from California to
points east. The 85-mile width of Lake Michigan blocks any further
eastward progress. And while the city's salubrious summer climate
and seasonal attractions bring many tourists at that time of year, the
same is not true in December. Milwaukee's average daily high
temperature in that month is 31 degrees and its average daily low is
17 degrees; the percentage of possible sunshine is only 38 percent. It
is a reasonable inference that a Californian stopping in Milwaukee in
December is either there to transact business or to visit family or
friends. The background facts, though rarely the subject of explicit
findings, inform the judge's assessment of the historical facts.
In a similar vein, our cases have recognized that a police officer may
draw inferences based on his own experience in deciding whether
probable cause exists. See, e.g., United States v. Ortiz, 422 U. S.
891, 897 (1975). To a layman the sort of loose panel below the back
seat arm rest in the automobile involved in this case may suggest only
wear and tear, but to Officer Luedke, who had searched roughly
2,000 cars for narcotics, it suggested that drugs may be secreted
inside the panel. An appeals court should give due weight to a trial
court's finding that the officer was credible and the inference was
reasonable.
We vacate the judgments and remand the case to the Court of Appeals
to review de novo the District Court's determinations that the officer
had reasonable suspicion and probable cause in this case.
It is so ordered.
______________________________________________________
__
SUPREME COURT OF THE UNITED STATES
No. 95-5257
SAUL ORNELAS AND ISMAEL ORNELAS-LEDESMA,
PETITIONERS
v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
[May 28, 1996]
JUSTICE SCALIA, dissenting.
The Court today decides that a district court's determinations whether
there was probable cause to justify a warrantless search and
reasonable suspicion to make an investigatory stop should be
reviewed de novo. We have in the past reviewed some mixed
questions of law and fact on a de novo basis, and others on a
deferential basis, depending upon essentially practical considerations.
Because, with respect to the questions at issue here, the purpose of
the determination and its extremely fact-bound nature will cause de
novo review to have relatively little benefit, it is in my view unwise
to require courts of appeals to undertake the searching inquiry that
standard requires. I would affirm the judgment of the Court of
Appeals.
As the Court recognizes, determinations of probable cause and
reasonable suspicion involve a two-step process. First, a court must
identify all of the relevant historical facts known to the officer at the
time of the stop or search; and second, it must decide whether, under
a standard of objective reasonableness, those facts would give rise to
a reasonable suspicion justifying a stop or probable cause to search.
See ante, at 6-7. Because this second step requires application of an
objective legal standard to the facts, it is properly characterized as a
mixed question of law and fact. See ante, at 7; Pullman-Standard v.
Swint, 456 U. S. 273, 289, n. 19 (1982).
Merely labeling the issues "mixed questions," however, does not
establish that they receive de novo review. While it is well settled
that appellate courts "accep[t] findings of fact that are not `clearly
erroneous' but decid[e] questions of law de novo," First Options of
Chicago, Inc. v. Kaplan, 514 U. S. ___, ___ (1995) (slip op., at 9),
there is no rigid rule with respect to mixed questions. We have said
that "deferential review of mixed questions of law and fact is
warranted when it appears that the district court is `better positioned'
than the appellate court to decide the issue in question or that probing
appellate scrutiny will not contribute to the clarity of legal doctrine."
Salve Regina College v. Russell, 499 U. S. 225, 233 (1991) (citing
Miller v. Fenton, 474 U. S. 104, 114 (1985)).
These primary factors that counsel in favor of deferential review of
some mixed questions of law and fact--expertise of the district court
and lack of law-clarifying value in the appellate decision--are
ordinarily present with respect to determinations of reasonable
suspicion and probable cause. The factual details bearing upon those
determinations are often numerous and (even when supported by
uncontroverted police testimony) subject to credibility
determinations. An appellate court never has the benefit of the
district court's intimate familiarity with the details of the case--nor the
full benefit of its hearing of the live testimony, unless the district
court makes specific findings on the "totality of the circumstances"
bearing upon the stop or search. As we recognized in Cooter & Gell
v. Hartmarx Corp., 496 U. S. 384 (1990), a case holding that
deferential (abuse-of-discretion) review should be applied to a district
court's Federal Rule of Civil Procedure 11 determination that an
attorney did not conduct a reasonable inquiry or entertain a
"substantiated belief" regarding the nonfrivolousness of the
complaint, see id., at 393: a district court, "[f]amiliar with the issues
and litigants . . . is better situated than the court of appeals to marshal
the pertinent facts and apply the fact-dependent legal standard . . . ."
Id., at 402.
Moreover, as the Court acknowledges, "reasonable suspicion" and
"probable cause" are "commonsense, nontechnical conceptions that
deal with `"the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act."'"
Ante, at 5-6 (quoting Illinois v. Gates, 462 U. S. 213, 231 (1983)
(quoting Brinegar v. United States, 338 U. S. 160, 176 (1949))).
Where a trial court makes such commonsense determinations based
on the totality of circumstances, it is ordinarily accorded deference.
What we said in a case concerning the question whether certain
payments were a "gift" excludable from income under the Internal
Revenue Code, is equally pertinent here.
"Decision of the issue presented in these cases must be based
ultimately on the application of the fact-finding tribunal's experience
with the mainsprings of human conduct to the totality of the facts of
each case. The nontechnical nature of the . . . standard, the close
relationship of it to the data of practical human experience, and the
multiplicity of relevant factual elements, with their various
combinations, creating the necessity of ascribing the proper force to
each, confirm us in our conclusion that primary weight in this area
must be given to the conclusions of the trier of fact." Commissioner
v. Duberstein, 363 U. S. 278, 289 (1960).
With respect to the second factor counseling in favor of deferential
review, level of law-clarifying value in the appellate decision: Law
clarification requires generalization, and some issues lend themselves
to generalization much more than others. Thus, in Pierce v.
Underwood, 487 U. S. 552, 562 (1988), a principal basis for our
applying an abuse-of-discretion standard to a district court's
determination that the United States' litigating position was
"substantially justified" within the meaning of the Equal Access to
Justice Act, 28 U. S. C. Section2412(d), was that the question was
"a multifarious and novel question, little susceptible, for the time
being at least, of useful generalization." Ibid. Probable cause and
reasonable suspicion determinations are similarly resistant to
generalization. As the Court recognizes, these are "fluid concepts,"
"`not readily, or even usefully, reduced to a neat set of legal rules'";
and "because the mosaic which is analyzed for a reasonable-
suspicion or probable-cause inquiry is multifaceted, `one
determination will seldom be a useful "precedent" for another.'"
Ante, at 6, 8 (quoting Illinois v. Gates, supra, at 232, 238, n. 11).
The Court maintains that there will be exceptions to this--that fact-
patterns will occasionally repeat themselves, so that a prior de novo
appellate decision will provide useful guidance in a similar case.
Ante, at 8-9. I do not dispute that, but I do not understand why we
should allow the exception to frame the rule. Here, as in Anderson
v. Bessemer City, 470 U. S. 564, 574-575 (1985), "[d]uplication of
the trial judge's efforts in the court of appeals would very likely
contribute only negligibly to the accuracy of fact de-termination at a
huge cost in diversion of judicial resources."
The facts of this very case illustrate the futility of attempting to craft
useful precedent from the fact-intensive review demanded by
determinations of probable cause and reasonable suspicion. On
remand, in conducting de novo review, the Seventh Circuit might
consider, inter alia, the following factors relevant to its determination
whether there was probable cause to conduct a warrantless search
and reasonable suspicion justifying the investigatory stop: (i) the two
NADDIS tips; (ii) that the car was a 1981 two-door General Motors
product; (iii) that the car was from California, a source state; (iv) that
the car was in Milwaukee; (v) that it was December; (vi) that one
suspect checked into the hotel at 4 a.m.; (vii) that he did not have
reservations; (viii) that he had one traveling companion; (ix) that one
suspect appeared calm but shaking; and (x) that there was a loose
panel in the car door. If the Seventh Circuit were to find that this
unique confluence of factors supported probable cause and
reasonable suspicion, the absence of any one of these factors in the
next case would render the precedent inapplicable.
Of course, even when all of the factors are replicated, use of a de
novo standard as opposed to a deferential standard will provide
greater clarity only where the latter would not suffice to set the trial
court's conclusion aside. For where the appellate court holds, on the
basis of deferential review, that it was reversible error for a district
court to find probable cause or reasonable suspicion in light of certain
facts, it advances the clarity of the law just as much as if it had
reversed the district court after conducting plenary review.
In the present case, an additional factor counseling against de novo
review must be mentioned: The prime benefit of de novo appellate
review in criminal cases is, of course, to prevent a miscarriage of
justice that might result from permitting the verdict of guilty to rest
upon the legal determinations of a single judge. But the issue in
these probable-cause and reasonable-suspicion cases is not innocence
but deterrence of unlawful police conduct. That deterrence will not be
at all lessened if the trial judge's determination, right or wrong, is
subjected to only deferential review.
The Court is wrong in its assertion, ante, at 9, that unless there is a
dual standard of review--deferential review of a magistrate's decision
to issue a warrant, and de novo review of a district court's ex post
facto approval of a warrantless search--the incentive to obtain a
warrant would be eliminated. In United States v. Leon, 468 U. S.
897, 913 (1984), we held that "reliable physical evidence seized by
officers reasonably relying on a warrant issued by a detached and
neutral magistrate . . . should be admissible in the prosecutor's case
in chief." Only a warrant can provide this assurance that the fruits of
even a technically improper search will be admissible. Law
enforcement officers would still have ample incentive to proceed by
warrant.
Finally, I must observe that the Court does not appear to have the
courage of its conclusions. In an apparent effort to reduce the
unproductive burden today's decision imposes upon appellate courts,
or perhaps to salvage some of the trial court's superior familiarity
with the facts that it has cast aside, the Court suggests that an
appellate court should give "due weight" to a trial court's finding that
an officer's inference of wrongdoing (i.e., his assessment of
probable cause to search), was reasonable. Ante, at 10. The Court
cannot have it both ways. This finding of "reasonableness" is
precisely what it has told us the appellate court must review de novo;
and in de novo review, the "weight due" to a trial court's finding is
zero. In the last analysis, there-
fore, the Court's opinion seems to me not only wrong but
contradictory.
* * *
I would affirm the judgment of the Seventh Circuit on the ground that
it correctly applied a deferential standard of review to the District
Court's findings of probable cause and reasonable suspicion.
ENDNOTES
1 Petitioners also alleged that they had not given their consent to
search the interior of the car. The Magistrate Judge rejected this
claim, finding that the record "clearly establishe[d] consent to search
the Oldsmobile" and that "neither [petitioner] placed any restrictions
on the areas the officers could search." App. 21. The Magistrate
ruled that this consent did not give the officers authority to search
inside the panel, however, because under Seventh Circuit precedent
the police may not dismantle the car body during an otherwise valid
search unless the police have probable cause to believe the car's
panels contain narcotics. See United States v. Garcia, 897 F. 2d
1413, 1419-1420 (1990). We assume correct the Circuit's limitation
on the scope of consent only for purposes of this decision.
2 The District Court emphasized twice that it did not reject the
Magistrate's recommendation with respect to the inevitable discovery
doctrine. App. 30-31, and n. 2; id., at 43-44. But on appeal the
Government did not defend the seizure on this alternative ground and
the Seventh Circuit considered the argument waived. Id., at 71-72.
3 While the Seventh Circuit uses the term "clear error" to denote the
deferential standard applied when reviewing determinations of
reasonable suspicion or probable cause, we think the preferable term
is "abuse of discretion." See Pierce v. Underwood, 487 U. S. 552,
558 (1988). "Clear error" is a term of art derived from Rule 52(a) of
the Federal Rules of Civil Procedure, and applies when reviewing
questions of fact.
4 Compare, e.g., United States v. Puerta, 982 F. 2d 1297, 1300
(CA9 1992) (de novo review); United States v. Ramos, 933 F. 2d
968, 972 (CA11 1991) (de novo review), cert. denied, 503 U. S.
908 (1992); United States v. Patrick, 899 F. 2d 169, 171 (CA2
1990) (de novo review) with United States v. Spears, 965 F. 2d
262, 268-271 (CA7 1992) (clear error).
The United States, in accord with petitioners, contends that a de novo
standard of review should apply to determinations of probable cause
and reasonable suspicion. We therefore invited Peter D. Isakoff to
brief and argue this case as amicus curiae in support of the judgment
below. 516 U. S. ___ (1996). Mr. Isakoff accepted the
appointment and has well fulfilled his assigned responsibility.
