423 U.S. 411 (1976)

UNITED STATES
v.
WATSON.

No. 74-538.

Supreme Court of United States.

Argued October 8, 1975. Decided January 26, 1976. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

*412 Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Bork, Acting Assistant Attorney General Keeney, and Peter M. Shannon, Jr.

Michael D. Nasatir, by appointment of the Court, 421 U. S. 997. argued the cause for respondent. With him on the brief was Donald M. Re.

MR. JUSTICE WHITE delivered the opinion of the Court.

This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent.

I

The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day *413 Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22.^[1] Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested. He was removed from the restaurant to the street where he was given the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). A search having revealed that Watson had no credit cards on his person, the inspector asked if he could look inside Watson's car, which was standing within view. Watson said, "Go ahead," and repeated these words when the inspector cautioned that "[i]f I find anything, it is going to go against you." Using keys furnished by Watson, the inspector entered the car and found under the floor mat an envelope containing two credit cards in the names of other persons. These cards were the basis for two counts of a four-count indictment charging Watson with possessing stolen mail in violation of 18 U. S. C. § 1708.^[2]

Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent. *414 The motion was denied, and Watson was convicted of illegally possessing the two cards seized from his car.^[3]

A divided panel of the Court of Appeals for the Ninth Circuit reversed, 504 F. 2d 849 (1974), ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. 420 U. S. 924 (1975).

II

A major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. Brown v. Illinois, 422 U. S. 590 (1975). However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue.

Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant. *415 Title 18 U. S. C. § 3061 (a) (3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees "performing duties related to the inspection of postal matters" to

"make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony."

By regulation, 39 CFR § 232.5 (a) (3) (1975), and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated § 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.

Under the Fourth Amendment, the people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause . . . ." Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so.^[4] This was not an *416 isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, 18 U. S. C. § 3053, and of agents of the Federal Bureau of Investigation, 18 U. S. C. § 3052; the Drug Enforcement Administration, 84 Stat. 1273, 21 U. S. C. § 878; the Secret Service, 18 U. S. C. § 3056 (a); and the Customs Service, 26 U. S. C. § 7607.^[5]

Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is `reasonable,' " "[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, 332 U. S. 581, 585 (1948). Moreover, there is nothing in the Court's prior cases indicating that under the *417 Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary.

"The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony . . . ." Carroll v. United States, 267 U. S. 132, 156 (1925). In Henry v. United States, 361 U. S. 98 (1959), the Court dealt with an FBI agent's warrantless arrest under 18 U. S. C. § 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard. . . ." 361 U. S., at 100. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, 362 U. S. 217, 232 (1960), the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, 358 U. S. 307 (1959), was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful . . . ." Id., at 310. Ker v. California, 374 U. S. 23, 34-35 (1963) (opinion of Clark, J.), reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause . . ." and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely *418 because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U. S. 103, 113 (1975).^[6]

The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant 22 Mich. L. Rev. 541, 547-550, 686-688 (1924); *419 Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (K. B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng. Rep. 585 (K. B. 1827). This has also been the prevailing rule under state constitutions and statutes. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals." Kurtz v. Moffitt, 115 U. S. 487, 504 (1885).

In Rohan v. Sawin, 59 Mass. 281 (1850), a false-arrest case, the Supreme Judicial Court of Massachusetts held that the common-law rule obtained in that State. Given probable cause to arrest, "[t]he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases." Id., at 284. In reaching this judgment the court observed:

"It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law." Id., at 284-285.

*420 Also rejected, id., at 285-286, was the trial court's view that to justify a warrantless arrest, the State must show "an immediate necessity therefor, arising from the danger, that the plaintiff would otherwise escape, or secrete the stolen property, before a warrant could be procured against him." The Supreme Judicial Court ruled that there was no "authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant." Id., at 286. Other early cases to similar effect were Wakely v. Hart, 6 Binn. 316 (Pa. 1814); Tolley v. Mix, 3 Wend. 350 (N. Y. Sup. Ct. 1829); State v. Brown, 5 Del. 505 (Ct. Gen. Sess. 1853); Johnson v. State, 30 Ga. 426 (1860); Wade v. Chaffee, 8 R. I. 224 (1865). See Reuck v. McGregor, 32 N. J. L. 70, 74 (Sup. Ct. 1866); Baltimore & O. R. Co. v. Cain, 81 Md. 87, 100, 102, 31 A. 801, 803, 804 (1895).^[7]

Because the common-law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that in 1792 Congress invested United States marshals and their deputies with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to arrest for a felony without a warrant.^[8] This provision equating the power of federal marshals *421 with those of local sheriffs was several times reenacted^[9] and is today § 570 of Title 28 of the United States Code. That provision, however, was supplemented in 1935 by § 504a of the Judicial Code,^[10] which in its essential elements is now 18 U. S. C. § 3053 and which expressly empowered marshals to make felony arrests without warrant and on probable cause. It was enacted to furnish a federal standard independent of the vagaries of state laws, the Committee Report remarking that under existing law a "marshal or deputy marshal may make an arrest without a warrant within his district in all cases where the sheriff might do so under the State statutes." H. R. Rep. No. 283, 74th Cong., 1st Sess., 1 (1935). See United States v. Riggs, 474 F. 2d 699, 702-703, n. 2 (CA2), cert. denied, 414 U. S. 820 (1973).

The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears *422 in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was § 120.1 which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has committed a misdemeanor or petty misdemeanor in his presence.^[11] The commentary to this section said: "The Code thus adopts the traditional and almost universal standard for arrest without a warrant."^[12]

*423 This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.^[13] Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, 380 U. S. 102, 106 (1965); Aguilar v. Texas, 378 U. S. 108, 111 (1964); Wong Sun v. United States, 371 U. S. 471, 479-480 (1963). But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable *424 to get a warrant, whether the suspect was about to flee, and the like.

Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary.

III

Because our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error.

We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U. S. 218, 225 (1973). There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer *425 to the law,^[14] mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent.

In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case.

In consequence, we reverse the judgment of the Court of Appeals.

So ordered.

MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

MR. JUSTICE POWELL, concurring.

Although I concur in the opinion of the Court, I write to express additional views. I note at the outset that the case could be disposed of on the ground that respondent's consent to the search was plainly voluntary. Schneckloth v. Bustamonte, 412 U. S. 218 (1973). Indeed, the evidence that his consent was the product of free will is so overwhelming that I would have held the consent voluntary even on the assumption that the preceding warrantless arrest was unconstitutional, and that the doctrine of Wong Sun v. United States, 371 U. S. 471 (1963), therefore was applicable. See Brown v. Illinois, 422 U. S. 590 (1975). The Court's different route to *426 the same result requires, however, an inquiry into the validity of the arrest itself.

I

Respondent was arrested without a warrant in a public restaurant six days after postal inspectors learned from a reliable source that he possessed stolen credit cards in violation of 18 U. S. C. § 1708. The Government made no effort to show that circumstances precluded the obtaining of a warrant, relying instead for the validity of the arrest solely upon the showing of probable cause to believe that respondent had committed a felony. Respondent contends, and the Court of Appeals held, that the absence of any exigency justifying the failure to procure a warrant renders this arrest violative of the Fourth Amendment.

In reversing the Court of Appeals, the Court concludes that nothing in our previous cases involving warrantless arrests supports the position of respondent and the Court of Appeals. See, e. g., Gerstein v. Pugh, 420 U. S. 103, 113 (1975). But it is fair to say, I think, that the prior decisions of the Court have assumed the validity of such arrests without addressing in a reasoned way the analysis advanced by respondent.^[1] Today's decision is *427 the first square holding that the Fourth Amendment permits a duly authorized law enforcement officer to make a warrantless arrest in a public place even though he had adequate opportunity to procure a warrant after developing probable cause for arrest.

On its face, our decision today creates a certain anomaly. There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few "jealously and carefully drawn" exceptional circumstances. Jones v. United States, 357 U. S. 493, 499 (1958); see Almeida-Sanchez v. United States 413 U. S. 266, 279-280 (1973) (POWELL, J., concurring); United States v. United States District Court, 407 U. S. 297, 314-321 (1972); Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (1971). On more than one occasion this Court has rejected an argument that a law enforcement officer's own probable cause to search a private place for contraband or evidence of crime should excuse his otherwise unexplained failure to procure a warrant beforehand. Id., at 450; Katz v. United States, 389 U. S. 347, 356-358 *428 (1967). In short, the course of judicial development of the Fourth Amendment with respect to searches has remained true to the principles so well expressed by Mr. Justice Jackson:

"Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Johnson v. United States, 333 U. S. 10, 14 (1948).

Since the Fourth Amendment speaks equally to both searches and seizures, and since an arrest, the taking hold of one's person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. Indeed, as an abstract matter an argument can be made that the restrictions upon arrest perhaps should be greater. A search may cause only annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimension only when it turns up evidence of criminality. An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent. Although an arrestee cannot be held for a significant period without some neutral determination that there are grounds to do so, see Gerstein, supra, no decision that he should go free can come quickly enough to erase the invasion of his privacy that already will have occurred. See Chimel v. California, 395 U. S. 752, 776 (1969) (WHITE, J., dissenting); cf. United States v. *429 Robinson, 414 U. S. 218, 237-238 (1973) (POWELL, J., concurring). Logic therefore would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches.

But logic sometimes must defer to history and experience. The Court's opinion emphasizes the historical sanction accorded warrantless felony arrests. In the early days of the common law most felony arrests were made upon personal knowledge and without warrants. So established were such arrests as the usual practice that Lord Coke seriously questioned whether a justice of the peace, receiving his information secondhand instead of from personal knowledge, even could authorize an arrest by warrant. 4 E. Coke, Institutes 177 (6th ed. 1681). By the late 18th century it had been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that magistrates could issue arrest warrants upon information supplied by others. 4 W. Blackstone, Commentaries *290; see 2 M. Hale, Pleas of the Crown *108-110. But recognition of the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued to be practiced and upheld as before. 4 W. Blackstone, supra, at *282; 1 J. Chitty, Criminal Law *14-15. There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers. See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937); cf. Gerstein v. Pugh, 420 U. S., at 114-116. As the Court today notes, the Second Congress' passage of an Act authorizing such arrests^[2] so soon after the adoption of the Fourth Amendment *430 itself underscores the probability that the constitutional provision was intended to restrict entirely different practices.

The historical momentum for acceptance of warrantless arrests, already strong at the adoption of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon the practice and, as the Government emphasizes, law enforcement agencies have developed their investigative and arrest procedures upon an assumption that warrantless arrests were valid so long as based upon probable cause. The decision of the Court of Appeals in this case was virtually unprecedented.^[3] Of course, no practice that is inconsistent with constitutional protections can be saved merely by appeal to previous uncritical acceptance. But the warrantless felony arrest, long preferred at common law and unimpeached at the passage of the Fourth Amendment, is not such a practice. Given the revolutionary implications of such a holding, a declaration at this late date that warrantless felony arrests are constitutionally infirm would have to rest upon reasons more substantial than a desire to harmonize the rules for arrest with those governing searches. Cf. United States v. Robinson, supra, at 230.

*431 Moreover, a constitutional rule permitting felony arrests only with a warrant or in exigent circumstances could severely hamper effective law enforcement. Good police practice often requires postponing an arrest, even after probable cause has been established, in order to place the suspect under surveillance or otherwise develop further evidence necessary to prove guilt to a jury.^[4] Under the holding of the Court of Appeals such additional investigative work could imperil the entire prosecution. Should the officers fail to obtain a warrant initially, and later be required by unforeseen circumstances to arrest immediately with no chance to procure a lastminute warrant, they would risk a court decision that the subsequent exigency did not excuse their failure to get a warrant in the interim since they first developed probable cause. If the officers attempted to meet such a contingency *432 by procuring a warrant as soon as they had probable cause and then merely held it during their subsequent investigation, they would risk a court decision that the warrant had grown stale by the time it was used.^[5] Law enforcement personnel caught in this squeeze could ensure validity of their arrests only by obtaining a warrant and arresting as soon as probable cause existed, thereby foreclosing the possibility of gathering vital additional evidence from the suspect's continued actions.

In sum, the historical and policy reasons sketched above fully justify the Court's sustaining of a warrantless arrest upon probable cause, despite the resulting divergence between the constitutional rule governing searches and that now held applicable to seizures of the person.^[6]

II

Finally, I share the view expressed in the opinion of MR. JUSTICE STEWART. It makes clear that we do not today consider or decide whether or under what circumstances *433 an officer lawfully may make a warrantless arrest in a private home or other place where the person has a reasonable expectation of privacy.^[7]

MR. JUSTICE STEWART, concurring in the result.

The arrest in this case was made upon probable cause in a public place in broad daylight. The Court holds that this arrest did not violate the Fourth Amendment, and I agree. The Court does not decide, nor could it decide in this case, whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest. See Gerstein v. Pugh, 420 U. S. 103, 113 n. 13; Coolidge v. New Hampshire, 403 U. S. 443, 474-481; Davis v. Mississippi, 394 U. S. 721, 728; Jones v. United States, 357 U. S. 493, 499-500.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.

By granting police broad powers to make warrantless arrests, the Court today sharply reverses the course of our modern decisions construing the Warrant Clause of the Fourth Amendment. The Court turns next to the consent-to-search question last dealt with in Schneckloth *434 v. Bustamonte, 412 U. S. 218 (1973). Without acknowledgment or analysis, the Court extends the scope of that decision to the situation expressly reserved in Schneckloth, and creates a rule inconsistent with Schneckloth's own analysis. The Court takes both steps with a remarkable lack of consideration of either the facts of this case or the constitutional questions it is deciding. That is unfortunate not only because, in my view, the Court decides the constitutional questions wrongly, but also because consideration would have shown that the first question decided today is not raised by the facts before us, and that the second question should not be resolved here, given the present posture of this case. I respectfully dissent.

I

Before addressing what the Court does today, I note what it does not do. It does not decide this case on the narrow question that is presented. That is unfortunate for this is, fundamentally, a simple case.

On the afternoon of August 23, 1972, Awad Khoury, an informant of proved reliability, met with respondent Watson at a public restaurant under the surveillance of two postal inspectors. Khoury was under instructions to light a cigarette as a signal to the watching agents if Watson was in possession of stolen credit cards. Khoury lit a cigarette, and the postal inspectors moved in, made the arrest, and, ultimately, discovered under the floor mat of Watson's automobile the stolen credit cards that formed the basis of Watson's conviction and this appeal.

The signal of the reliable informant that Watson was in possession of stolen credit cards gave the postal inspectors probable cause to make the arrest. This probable cause was separate and distinct from the probable cause relating to the offense six days earlier, and provided an *435 adequate independent basis for the arrest. Whether or not a warrant ordinarily is required prior to making an arrest, no warrant is required when exigent circumstances are present. When law enforcement officers have probable cause to believe that an offense is taking place in their presence and that the suspect is at that moment in possession of the evidence, exigent circumstances exist. Delay could cause the escape of the suspect or the destruction of the evidence. Accordingly, Watson's warrantless arrest was valid under the recognized exigent-circumstances exception to the warrant requirement, and the Court has no occasion to consider whether a warrant would otherwise be necessary.^[1]

This conclusion should properly dispose of the case before us. As the Court observes, ante, at 414, the Court of Appeals relied heavily on the supposed illegality of Watson's arrest in ruling that his consent to the search of his car was coerced. Neither the opinion of the Court of Appeals nor the briefs of the parties here address the remaining issue of the circumstances under which consent to search given by a suspect lawfully in custody may be deemed coerced. Since that issue is both complex and *436 expressly reserved in Schneckloth v. Bustamonte, supra, I think it inappropriate for resolution without the benefit of the views of the parties and the Court of Appeals. Accordingly, I would reverse the Court of Appeals on the legality of the arrest, vacate its judgment, and remand the case to that court for further proceedings.

II

Since, for reasons it leaves unexpressed, the Court does not take this traditional course, I am constrained to express my views on the issues it unnecessarily decides. The Court reaches its conclusion that a warrant is not necessary for a police officer to make an arrest in a public place, so long as he has probable cause to believe a felony has been committed, on the basis of its views of precedent and history. As my Brother POWELL correctly observes, ante, at 426-427, n. 1 (concurring), the precedent is spurious. None of the cases cited by the Court squarely confronted the issue decided today. Moreover, an examination of the history relied on by the Court shows that it does not support the conclusion laid upon it. After showing why, in my view, the Court's rationale does not support today's result, I shall examine the relevant decisions and suggest what I believe to be the proper rule for arrests.

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

There is no doubt that by the reference to the seizure of persons, the Fourth Amendment was intended to *437 apply to arrests. Ex parte Burford, 3 Cranch 448 (1806). See generally N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-82 (1937). Indeed, we have often considered whether arrests were made in conformity with the Fourth Amendment. E. g., Beck v. Ohio, 379 U. S. 89 (1964); Ker v. California, 374 U. S. 23 (1963); Draper v. United States, 358 U. S. 307 (1959); Giordenello v. United States, 357 U. S. 480 (1958). Admittedly, as the Court observes, some of our decisions make passing reference to the common-law rule on arrests. E. g., Carroll v. United States, 267 U. S. 132, 156 (1925); Bad Elk v. United States, 177 U. S. 529, 534 (1900); Kurtz v. Moffitt, 115 U. S. 487, 498-499 (1885). However, none of the cases cited by the Court, nor any other warrantless arrest case in this Court, mandates the decision announced today. Frequently exigent circumstances were present, so that the warrantless arrest was proper even if a warrant ordinarily may be required. Ker v. California, supra; Draper v. United States, supra; United States v. Di Re, 332 U. S. 581 (1948). Many cases have invalidated arrests as not based on probable cause, thereby bypassing the need to reach the warrant question. E. g., Beck v. Ohio, supra; Henry v. United States, 361 U. S. 98 (1959). Elsewhere the Court has simply assumed the propriety of the arrest and resolved the case before it on other grounds. Chimel v. California, 395 U. S. 752 (1969). Cf. Coolidge v. New Hampshire, 403 U. S. 443, 476 (1971). And in other cases, the Court noted, but did not reach, the warrantless-arrest issue, E. g., Giordenello v. United States, supra. In sum, as the case-by-case analysis undertaken by my Brother POWELL demonstrates, the dicta relied upon by the Court in support of its decision today are just that—dicta. See ante, at 426-427, n. 1 (concurring). They are no substitute *438 for reasoned analysis of the relationship between the warrant requirement and the law of arrest.

The Court next turns to history. It relies on the English common-law rule of arrest and the many state and federal statutes following it. There are two serious flaws in this approach. First, as a matter of factual analysis, the substance of the ancient com