The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_2019/91_2019.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-2019
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MINNESOTA, PETITIONER v. TIMOTHY
DICKERSON
on writ of certiorari to the supreme court of
minnesota
[June 7, 1993]

  Justice Scalia, concurring.
  I take it to be a fundamental principle of constitutional
adjudication that the terms in the Constitution must be
given the meaning ascribed to them at the time of their
ratification.  Thus, when the Fourth Amendment provides
that -[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated- (emphasis
added), it -is to be construed in the light of what was
deemed an unreasonable search and seizure when it was
adopted,- Carroll v. United States, 267 U. S. 132, 149
(1925); see also California v. Acevedo, 500 U. S. ___, ___
(1991) (slip op., at 3-4) (Scalia, J., concurring in judg-
ment).  The purpose of the provision, in other words, is
to preserve that degree of respect for the privacy of
persons and the inviolability of their property that existed
when the provision was adopted-even if a later, less
virtuous age should become accustomed to considering all
sorts of intrusion -reasonable.-
  My problem with the present case is that I am not
entirely sure that the physical search-the -frisk--that
produced the evidence at issue here complied with that
constitutional standard.  The decision of ours that gave
approval to such searches, Terry v. Ohio, 392 U. S. 1
(1968), made no serious attempt to determine compliance
with traditional standards, but rather, according to the
style of this Court at the time, simply adjudged that such
a search was -reasonable- by current estimations.  Id., at
22-27.
  There is good evidence, I think, that the -stop- portion
of the Terry -stop-and-frisk- holding accords with the
common law-that it had long been considered reasonable
to detain suspicious persons for the purpose of demanding
that they give an account of themselves.  This is sug-
gested, in particular, by the so-called night-walker stat-
utes, and their common-law antecedents.  See Statute of
Winchester, 13 Edw. I, Stat. 2, ch. 4 (1285); Statute of 5
Edw. III, ch. 14 (1331); 2 W. Hawkins, Pleas of the Crown
c. 13, 6, p. 129 (8th ed. 1824) (-It is holden that this
statute was made in affirmance of the common law, and
that every private person may by the common law arrest
any suspicious night-walker, and detain him till he give
a good account of himself-); 1 E. East, Pleas of the Crown
ch. 5, 70, p. 303 (1803) (-It is said . . . that every
private person may by the common law arrest any suspi-
cious night-walker, and detain him till he give a good
account of himself-); see also M. Dalton, The Country
Justice ch. 104, pp. 352-353 (1727); A. Costello, Our
Police Protectors:  History of the New York Police 25
(1885) (quoting 1681 New York City regulation); 2 Perpet-
ual Laws of Massachusetts 1788-1798, ch. 82, 2, p. 410
(1797 Massachusetts statute).
  I am unaware, however, of any precedent for a physical
search of a person thus temporarily detained for question-
ing.  Sometimes, of course, the temporary detention of a
suspicious character would be elevated to a full custodial
arrest on probable cause-as, for instance, when a suspect
was unable to provide a sufficient accounting of himself.
At that point, it is clear that the common law would
permit not just a protective -frisk,- but a full physical
search incident to the arrest.  When, however, the deten-
tion did not rise to the level of a full-blown arrest (and
was not supported by the degree of cause needful for that
purpose), there appears to be no clear support at common
law for physically searching the suspect.  See Warner, The
Uniform Arrest Act, 28 Va. L. Rev. 315, 324 (1942) (-At
common law, if a watchman came upon a suspiciously
acting nightwalker, he might arrest him and then search
him for weapons, but he had no right to search before
arrest-); Williams, Police Detention and Arrest Privi-
leges-England, 51 J. Crim. L., C. & P. S. 413, 418 (1960)
(-Where a suspected criminal is also suspected of being
offensively armed, can the police search him for arms, by
tapping his pockets, before making up their minds whe-
ther to arrest him?  There is no English authority . . . .-).
  I frankly doubt, moreover, whether the fiercely proud
men who adopted our Fourth Amendment would have
allowed themselves to be subjected, on mere suspicion of
being armed and dangerous, to such indignity-which is
described as follows in a police manual:
-Check the subject's neck and collar.  A check should
be made under the subject's arm.  Next a check
should be made of the upper back.  The lower back
should also be checked.
      -A check should be made of the upper part of the
man's chest and the lower region around the stomach.
The belt, a favorite concealment spot, should be
checked.  The inside thigh and crotch area also should
be searched.  The legs should be checked for possible
weapons.  The last items to be checked are the shoes
and cuffs of the subject.-  J. Moynahan, Police Search-
ing Procedures 7 (1963) (citations omitted).
On the other hand, even if a -frisk- prior to arrest would
have been considered impermissible in 1791, perhaps it
was considered permissible by 1868, when the Fourteenth
Amendment (the basis for applying the Fourth Amend-
ment to the States) was adopted.  Or perhaps it is only
since that time that concealed weapons capable of harm-
ing the interrogator quickly and from beyond arm's reach
have become common-which might alter the judgment of
what is -reasonable- under the original standard.  But
technological changes were no more discussed in Terry
than was the original state of the law.
  If I were of the view that Terry was (insofar as the
power to -frisk- is concerned) incorrectly decided, I
might-even if I felt bound to adhere to that case-vote
to exclude the evidence incidentally discovered, on the
theory that half a constitutional guarantee is better than
none.  I might also vote to exclude it if I agreed with the
original-meaning-is-irrelevant, good-policy-is-constitutional-
law school of jurisprudence that the Terry opinion repre-
sents.  As a policy matter, it may be desirable to permit
-frisks- for weapons, but not to encourage -frisks- for
drugs by admitting evidence other than weapons.
  I adhere to original meaning, however.  And though I
do not favor the mode of analysis in Terry, I cannot say
that its result was wrong.  Constitutionality of the -frisk-
in the present case was neither challenged nor argued.
Assuming, therefore, that the search was lawful, I agree
with the Court's premise that any evidence incidentally
discovered in the course of it would be admissible, and
join the Court's opinion in its entirety.