Associated Searches Incident to Arrest: Protective Sweep of Premises
MARYLAND v. BUIE, Supreme Court of the United States (1990), 494 U.S. 325, 110 S.Ct. 1093
FACTS:
Following the robbery of a pizza restaurant police obtained an arrest warrant for respondent Buie and placed his home under surveillance. Once police determined that Buie was in his residence, authorities initiated steps to execute the warrant. The officers secured the residence by conducting a cursory search of all floors in order to locate all the occupants.
Officers Rozar shouted into the basement area that he was a police officer and that anyone in the basement should show him his hands. When respondent Buie complied with Rozar's order he was arrested and subjected to a search incident to arrest. Subsequently, Detective Frolich entered the basement to make certain that Buie had been the solo occupant.
When Detective Frolich scanned the basement, he discovered in plain view, a red running suit which appeared to be identical to the one worn by one of the robbers. This suit was later introduced in evidence against Buie, and over his objection.
The Court of Special Appeals of Maryland sustained the trial judge's decision, but the Court of Appeals of Maryland reversed the trial court judgement on the theory that to justify a protective sweep of a house, the police must show probable cause to believe that "a serious and demonstrable potentiality for danger" exists. The court stated that when the sanctity of the home is involved, the exceptions to the warrant requirement are few, and held that to justify a protective sweep of a home, the government must show that there is probable cause to believe that a serious and demonstrable potentiality for danger exists. According to the Court, probable cause to believe danger lurked in the basement did not exist.
The Supreme Court of the United States granted certiorari following Maryland's petition.
PROCEDURAL QUESTION:
When executing an arrest warrant, may officers conduct a protective sweep of the entire residential where the officers possess a reasonable belief based on specific and articulable facts, taken together with rational inferences, that the area swept may harbor an individual posing a danger to the officers?
HELD: Yes.
RATIONALE:
JUSTICE WHITE delivered the opinion of the Court.
A "protective sweep" is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. In this case we must decide what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises. . . . We conclude that the Fourth Amendment would permit the protective sweep undertaken here if the search officer "possesse[d] a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonable warrant[ed]' the officer in believing," Michigan v. Long, 463 U.S. 1032, 1049-1050 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)), that the area swept harbored an individual posing a danger to the officer or others. We accordingly vacate the judgment below and remand for application of this standard.
I* * *
The Court of Appeals of Maryland reversed by a 4 to 3 vote. 314 Md. 151, 550 A.2d 79 (1988). The court acknowledged that "when the intrusion is slight, as in the case of a brief stop and frisk on a public street, and the public interest in prevention of crime is substantial, reasonable articulable suspicion may be enough to pass constitutional muster." id., at 159, 550 A. 2d, at 83. Id., at 159-160, 550 A.2d, at 83 (citation omitted). The court went on to find that the State had not satisfied that probable-cause requirement. Id., at 165-166, 550 A.2d, at 86. We granted certiorari, 490 U.S. (1989).
II
It is not disputed that until the point of Buie's arrest the police had the right, based on the authority of the arrest warrant, to search anywhere in the house that Buie might have been found, including the basement.
* * *
Petitioner, the State of Maryland, argues that, under a general reasonableness balancing test, police should be permitted to conduct a protective sweep whenever they make an in-home arrest for a violent crime. As an alternative to this suggested bright-line rule, the State contends that protective sweeps fall within the ambit of the doctrine announced in Terry v. Ohio, 392 U.S. 1 (1968), and that such sweeps may be conducted in conjunction with a valid in-home arrest whenever the police reasonably suspect a risk of danger to the officers or others at the arrest scene. The United States, as amicus curiae supporting the State, also argues for a Terry-type standard of reasonable, articulable suspicion of risk to the officer, and contends that standard is met here. Respondent argues that a protective sweep may not be undertaken without a warrant unless the exigencies of the situation render such warrantless search objectively reasonable. According to Buie, because the State has shown neither exigent circumstances to immediately enter Buie's house nor an unforeseen danger that arose once the officers were in the house, there is no excuse for the failure to obtain a search warrant to search for dangerous persons believed to be on the premises.
III
The Terry case is most instructive for present purposes. There we held that an on-the-street "frisk" for weapons must be tested by the Fourth Amendment's general proscription against unreasonable searches because such a frisk involves "an entire rubric of police conduct - necessarily swift action predicated upon the on-the-spot observations of the officer on the beat - which historically has not been and as a practical matter could not be, subjected to the warrant procedure." Ibid. We stated that there is "`no ready test for determining reasonableness other than by balancing the need to search. . . against the invasion which the search. . .entails.'" Id., at 21 (quoting Camara v. Municipal Court, 387 U.S. 523, 536-537 (1967)). Applying that balancing test, it was held that although a frisk for weapons "constitute a sever, though brief, intrusion upon cherished personal security," 392 U.S., at 24-25, such a frisk is reasonable when weighed against the "need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest."
In Michigan v. Long, 463 U.S. 1032 (1983), the principles of Terry were applied in the context of a roadside encounter: "the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Id., at 1049-1050 (quoting Terry, supra, at 21). The Long Court expressly rejected the contention that Terry restricted preventative searches to the person of a detained suspect. 463 U.S., at 1047. In a sense, Long authorized a "frisk" of an automobile for weapons.
The ingredients to apply the balance struck in Terry and Long are present in this case. Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found. Once he was found, however, the search for him was over, and there was no longer that particular jurisdiction for entering any rooms that had not yet been searched.
That Buie had an expectation of privacy in those remaining areas of his house however, does not mean such rooms were immune from entry.
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We are quite sure, however, that the arresting officers are permitted in such circumstances to take reasonable steps to ensure their safety after, and while making, the arrest. That interest is sufficient to outweigh the intrusion such procedures may entail.
We agree with the State, as did the court below, that a warrant was not required. We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the pace of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.
We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
IV* * *
To reach our conclusion today, therefore we need not disagree with the Court's statement in Chimel, id., at 766-767, n. 12, that "the invasion of privacy that results from a top-to-bottom search of a man's house [cannot be characterized] as `minor,'" nor hold that "simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require," Ibid. The type of search we authorize today is far removed from the "top-to-bottom" search involved in Chimel; moreover it is decidedly not "automati[c]," but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.
V
We conclude that by requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. We therefore vacate the judgment below and remand this case to the Court of Appeals of Maryland for further proceeding not inconsistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
Today the Court holds that reasonable suspicion, rather than probable cause, is necessary to support a protective sweep while an arrest is in progress. I agree with that holding and with the Court's opinion, but I believe it is important to emphasize that the standard applies only to protective sweeps. Officers conducting such a sweep must have a reasonable basis for believing that their search will reduce the danger of harm to themselves or of violent interference with their mission; in short, the search must be protective.
In this case, to justify Officer Frolich's entry into the basement, it is the State's burden to demonstrate that the officers had a reasonable basis for believing not only that someone in the basement might attack them or otherwise try to interfere with the arrest, but also that it would be safer to go down the stairs instead of simply guarding them from above until respondent had been removed from the house.
* * *
But Officer Frolich did not merely "look in" the basement; he entered it. That strategy is sensible if one wishes to search the basement. It is a surprising choice for an officer, worried about safety, who need not risk entering the stairwell at all.
Notes
1. In a portion of the opinion not reprinted here, the Buie dissenters suggested that the officers must have probable cause to fear for their safety in order to conduct a protective sweep type search due to the special sanctity normally accorded the private residential dwelling. Would adhering to such a higher standard place police officers in a greater level of harm?
Full Search of Person and Effects Permitted Following Arrest
UNITED STATES v. ROBINSON, Supreme Court of the United States (1973), 414 U.S. 218, 94 S.Ct. 467
FACTS:
A District of Columbia police officer, Richard Jenks, arrested Willie Robinson, Jr. for the crime of operating a motor vehicle while under a license suspension. Officer Jenks possessed probable cause for this arrest since he knew from an earlier encounter that Robinson did not possess a valid driver's license.
Since the crime carried a mandatory minimum jail sentence, a minimum fine, or both, Jenks determined to make a full custody arrest. Pursuant to a standard search incident to arrest, Jenks "patted-down" Robinson, whereupon he discovered an object in Robinson's left breast pocket. After Jenks removed the object, he observed that the object was a crumbled cigarette package, which proved to contain fourteen gelatin capsules containing a white powder. Later analysis proved that the powder was heroin.
The heroin taken in the search incident to arrest was admitted against Robinson at his trial which resulted in his conviction for possession of heroin. Robinson unsuccessfully objected to the introduction of the heroin on the ground that the search incident to arrest went beyond the scope permitted under the Fourth Amendment.
Pursuant to the appeal filed by Robinson, the United States Court of Appeals for the District of Columbia ultimately reversed his conviction for heroin possession. The Court reasoned that a search incident to arrest should be conducted much like a Terry-type stop and frisk and that Officer Jenks, by searching inside the garments of Robinson, exceeded the scope of a search incident to arrest. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Subsequent to a valid, full-custody arrest, may the person of the arrestee, his effects, and the area within his immediate control be fully searched by a law enforcement official?
HELD: Yes.
RATIONALE:
Mr. Justice REHNQUIST delivered the opinion of the Court.
* * *I
It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.
Examination of this Court's decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.
* * *
Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest - the permissible area beyond the person of the arrestee which such a search may cover - no doubt has been expressed as to the unqualified authority of the arresting authority to search to the person of the arrestee. (Citations omitted.) United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 663 (1950); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Chimel v. California 395 U.S. 752, 89 S.Ct. 2034, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, where the Court overruled Rabinowitz and Harris as to the area of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee:
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." 395 U.S., at 762-763, 89 S.Ct. at 2040.
Three years after the decision in Chimel, supra, we upheld the validity of a search in which heroin had been taken from the person of the defendant after his arrest on a weapons charge, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), saying:
"Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful." Id., at 149, 92 S.Ct. at 1925.
". . . A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 [87 S.Ct. 1642, 1652, 18 L.Ed.2d 782] (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a `full' search, even though it remains a serious intrusion."
* * *
Terry, therefore, affords no basis to carry over to probable cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.
* * *
The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits. Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less-than-probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals.
The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Angello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.
* * *
But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment.
IV
The search of respondent's person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. While thorough, the search partook of none of the extreme or patently abusive characteristics which were held to violate Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.
* * *
[The Court reversed the Court of Appeals and reinstated Robinson's conviction.]
* * *
Notes
1. In Robinson, the search of Robinson's person was not likely to uncover additional evidence that Robinson had been operating a motor vehicle without an operator's permit. However, it is the fact of arrest which justifies the complete search of the person of arrestee; not the chance of the discovery of evidence of the crime or of different crimes. This type of search is an exception to the warrant requirement and is considered reasonable under the Fourth Amendment.
2. The scope of a search incident to arrest extends to all personal effects. Where a person has been arrested in his automobile, a complete warrantless search of the interior may be conducted on the theory that the entire interior of the auto is within the "lunge area" from which an arrestee could obtain a weapon or destroy evidence. The complete inside of the car may be searched even when the facts indicate that the arrestee does not possess dominion and control over the interior. See New York v. Belton, 453 U.S. 454 (1981).
3. The general rule concerning search incident to arrest requires that the search occur at the time of arrest or shortly after the arrest. May a search incident to arrest take place hours following an arrest if such search would have been justified at the time of arrest? Consider United States v. Edwards, 415 U.S. 800 (1974) where police believed that the arrestee's clothing contained paint chips which had been deposited during the crime. Suitable alternative clothing was not available until the next morning. Police exchanged the clothing worn the night of the crime with different garments. Microscopic analysis revealed incriminating paint samples within the garments. Edwards argued that a search conducted without a warrant at a different time rather than contemporaneous with the arrest was unreasonable without a warrant. The Edwards Court noted when the accused is:
". . . lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and . . . and the taking of the property for use as evidence . . .".
According to the Court since Edward's clothing could have been searched at the time of his arrest, a subsequent warrantless search following an elapse of time did not require any separate justification.
4. In a case where the Court arguably could have used the search incident to arrest rationale, it chose a different theory to uphold a search conducted following an arrest. The Court applied the inventory search rational to uphold the search of an arrestee's backpack following an arrest for disturbing the peace. In Illinois v. Lafayette, 462 U.S. 640 (1983), Lafayette had been taken into custody but not completely searched until his effects were being catalogued pursuant to a routine inventory search of the arrestee's possessions. Since the inventory search revealed amphetamines within the backpack, Lafayette unsuccessfully sought suppression of the evidence. The Court balanced the need for the intrusion against legitimate governmental interests and determined that it is reasonable to search the effects of persons arrested since prisoners have been known to injure themselves and others with articles brought into custody. Depending on the facts, either the Edwards rationale, or a true search incident to arrest, or an inventory search may be utilized to justify warrantless searches following a full-custody arrest.