Although the plurality's "meandering opinion" does not display "total indifference" to law enforcement, it "betrays a mind set more useful to those who officiate at shuffleboard games" than to persons administering a system of justice. So says Justice Rehnquist's dissent, which was joined by Chief Justice Burger and Justice O'Connor. It is, if anything, too mild a rebuke to the Supreme Court majority that affirmed (5-4) a Florida appellate court's reversal of a conviction of a man named Royer.
On Jan. 3, 1978, two detectives observed Royer at Miami's airport and, making the kind of judgment that police experience makes possible and police duties demand, they decided that the "drug courier profile" fit Royer. The profile is a composite of characteristics typical of persons smuggling drugs.
Royer was visibly nervous, he was carrying two heavy suitcases, and he peeled bills from a large roll to buy a one-way ticket to a "target city" (New York) of narcotics traffic. On his bags he affixed tags on which he wrote not an address and telephone number but only the name "Holt" and the destination "LaGuardia."
The officers, who Royer later testified were polite, identified themselves and asked if he had a moment to talk. He said yes and complied with their request to see his ticket and some identification. His ticket bore the name Holt, his driver's license the name Royer. He said a friend named Holt had made the reservation, but that did not explain why he put "Holt" on his baggage.
Royer became more nervous and the officers said they suspected him of smuggling drugs. They asked if he would accompany them for further questioning to a room 40 feet away, adjacent to the concourse. They had his bags retrieved and asked if he would consent to a search of them. He produced a key to one, which contained drugs. He said he did not know the combination to the lock on the other, but when asked if he objected to its being forced open, he said, "no, go ahead." More drugs--65 pounds in all--were found.
Justice White, joined by Justices Marshall, Powell and Stevens, argued that at some moment in this process, which lasted just 15 minutes from the first words to Royer through the opening of the bags, the officers violated the Constitution's guarantee against "unreasonable searches and seizures." Justice Brennan, who says even the initial stop of Royer was illegal, concurs in the result, adding his usual discovery of a "peril to our free society." (The peril is, of course, the officers' behavior, not drug smuggling.)
The result is unreasonable, not to say unintelligible, hairsplitting about what constitutes reasonable police behavior. The officers had reasonable grounds for suspecting Royer. Drug courier profiles, a distillation of police experience, have been used for a decade. In the first few months in the Detroit airport, drugs were found in 77 of 141 searches. At LaGuardia, 60 percent of those singled out were carrying drugs. Yet the court's plurality believes that at some point in the 15 minutes, the episode evolved into an arrest unsupported by probable cause.
The plurality says the officers had grounds for temporarily detaining Royer. But White's opinion oddly stresses that when Royer was asked to show his ticket and identification, and again when he was asked to open the first bag, he complied, but without "oral" consent. Rehnquist tartly says it is "one of the many opaque nuances of the plurality's opinion" that it is supposed to make a difference that instead of "orally" consenting, Royer produced his ticket and license, and a key.
White's opinion emphasizes that the room to which they went--it was tourist season, and the concourse was crowded--was "windowless" and "small." But it was big enough to accommodate a desk, two chairs, three adults and two large suitcases, and Rehnquist wonders why the size of the room is relevant.
The plurality argues, as Rehnquist says, "that somewhere between the beginning of the 40-foot journey and the resumption of the conversation in the room, the investigation became so intrusive that Royer's consent 'evaporated.'" This, even though Royer, who was in his fourth year of college, consented to go to the room. Rehnquist struggles to tie the five justices to the subject--which is the question of what constitutes "unreasonable" searches and seizures. He asks, insistently: what was unreasonable about what the officers did?
Surely what is devoid of wisdom is the court's spinning of ever-finer distinctions and procedural refinements. There is no understanding of reasoning in a real-world context, and no social value, in this practice of subjecting police procedure to this sort of judicial squint.
The plurality says the episode would have been consensual, and hence legal, if the officers had handed back Royer's ticket and license. The plurality complains that the officers did not ask Royer's consent to retrieve the bags (bags that he then consented to have opened). Rehnquist can speak for himself, but I do not think those justices should be trusted to officiate at any very serious shuffleboard games.