MARYLAND v. BUIE

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Argument of Dennis M. Sweeney

Chief Justice Rehnquist: We'll hear argument next in Number 88-1369, Maryland v. Jerome Edward Buie.

Mr. Sweeney, you may proceed whenever you're ready.

Mr. Sweeney: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether police officers possessing an... a arrest warrant for an armed robbery suspect may, at the time of the arrest of the suspect in his home, make a brief security check of the premises to determine if other persons are present.

The Maryland Court of Appeals decided that the state must show that there is probable cause to believe that a serious and demonstrable potentiality for danger exists to justify a safety check in this type of situation.

Finding the probable cause for a safety check did not exist in this case.

It held that a red running suit seized by one of the officers during the security check should have been suppressed.

A new trial was ordered, setting aside Mr. Buie's 35-year sentence for armed robbery and use of a handgun in the commission of a felony.

The state asserts that safety checks of homes at the time of arrest, under the authority of an arrest warrant, should be analyzed under the general reasonableness balancing test.

Applying this test, the balancing of Mr. Buie's minimal privacy interest affected by the safety check against the compelling need to preserve the safety of officers and others at the arrest scene, is best met by establishing a bright-line rule, a single, workable standard authorizing a brief and limited check of the home, without any need for objective justification in each case.

Unknown Speaker: Now, the Solicitor General suggests a test that may differ from that which you are suggesting.

Mr. Sweeney: That is correct.

We argue that also in the alternative, the reasonable suspicion test.

We, however, believe that this is best served by a categorical rule, a bright-line rule which would authorize such checks in every situation of an in-home arrest for a dangerous crime.

Unknown Speaker: As a practical matter, what is the police practice on in-home arrests?

Is it typical that a so-called protective sweep be made, or is it not?

Mr. Sweeney: There is nothing evidentiary in this record on that practice.

However, since the... this Court's decision in Chimel, there have been legions of cases which have been collected by both parties and which have been analyzed in the law reviews, which indicate that this is a very common police practice, indeed a police rubric, after an arrest to conduct a limited sweep of the premises to determine if other individuals are on the premises.

This type of procedure has been recognized by the 12 federal circuits, by 33 state courts, as prudent police conduct.

Unknown Speaker: In this case, was there sufficient basis on which the officers could have obtained a search warrant at the same time they got the arrest warrant?

Mr. Sweeney: If the officers, at the time they obtained the arrest warrant, if there was a standard that required a warrant in such situations, we believe that a warrant could have been obtained, but that is... in a sense backs right into our bright-line rule.

Because, it is our contention, that every arrest for a dangerous crime is the type of situation that requires a safety check to be made.

Unknown Speaker: May I ask about your bright-line rule?

Supposing the man to be arrested opened the door when it was rung and said okay, I will go with you, and just walked right out with them.

Could you search his house?

Mr. Sweeney: I believe the, the best bright-line rule would provide that if the officers do not need to cross the threshold of the home--

Unknown Speaker: Supposing he is ten feet... say he is in the hallway with his coat and hat on, and... what does the bright-line rule provide then?

Mr. Sweeney: --The bright-line rule provides that if the officers need to go into the house, which I think they would if he is ten feet inside the house--

Unknown Speaker: What if he answered the door and says just a minute, I will get my coat and come right out?

Mr. Sweeney: --I don't believe the officers could trust that statement if they are dealing with an individual who has a--

Unknown Speaker: Well, say it is hanging on a coat rack right in plain sight.

He says... they have to sweep the whole house?

Mr. Sweeney: --If, if they cross the threshold, the best workable rule would be that the officers can do a limited and brief security check.

Unknown Speaker: Well, limited by what?

Mr. Sweeney: Limited--

Unknown Speaker: The size of the house?

Mr. Sweeney: --Limited in two ways.

One is that it is brief.

Limited also in that it is a search for persons.

It is--

Unknown Speaker: But it's a three-story house, and he is in the hall on the first floor.

Mr. Sweeney: --That is correct.

Unknown Speaker: They can go through the whole house?

Mr. Sweeney: That's correct.

Unknown Speaker: Well, why would that... why would it make a difference... if you found him out on the front steps, you couldn't go in and search the house, is that right?

Mr. Sweeney: It... under the rule that we are proposing--

Unknown Speaker: Well, why don't you... you go in and you find him in the front hall, then you take him outside under arrest.

Now can you go back in and search the whole house, which is what happened here?

Mr. Sweeney: --I don't believe that the record is consistent with that.

Unknown Speaker: Oh, you mean, you mean he wasn't taken outside the house?

Mr. Sweeney: No, I don't believe... there is a statement in the court of appeals' decision that indicates that the individual was... had left the scene--

Unknown Speaker: Well, who do we believe?

Mr. Sweeney: --Well, the record in the case, the trial record in the case says that the individual was handcuffed, and then the second officer, Officer Frolich, Detective Frolich, went down into the basement.

There is no indication in the evidentiary record in this case that the officer... that the individual was taken outside of the house.

That statement was made in the court of appeals' decision, but it does not have any support in the factual, in the trial transcript of this case.

Unknown Speaker: General Sweeney, maybe the rule you are arguing for is a good rule, but it baffles me why it is a rule that is based upon the need to protect the safety of the officers.

It seems to me the best way for them to assure their safety from people hidden in the house when they encounter this fellow in the hall is to grab him and pull him outside, if he is there.

You think they are really protect... preserving their safety by going up to the attic to see if there is anybody up there who might shoot at them?

Mr. Sweeney: There's... there--

Unknown Speaker: That just is... you know, that's just not true, is it?

Mr. Sweeney: --It is, it is going to be true in very many arrests that the necessary thing to do is to do a sweep of the house.

It will not necessarily be true in every arrest.

And the safety concern that we're proposing to this Court is not just the safety of the officers, but the safety of others at the arrest scene.

And that if the officers make the determination, they don't... this... they do not have to do a protective sweep of the house, but they are authorized to do a protective sweep of the house if the situation, in their judgment, requires it for their safety or the safety of others.

Unknown Speaker: But that is a different rule.

You are now saying if in their judgment it requires it.

That is not a categorical rule anymore.

Mr. Sweeney: No, it's a categorical rule like the Belton rule.

The Belton rule says that officers can search every container--

Unknown Speaker: Right.

Which would mean here they could search, even if their judgment wasn't that it required it, but they thought well, if we go through the attic we might find somebody else or some evidence that would be useful.

Mr. Sweeney: --Well, it's an objective test.

Unknown Speaker: Right.

And I mean, there is nothing wrong with that if the rule authorizes it, it is perfectly all right to take a look.

Mr. Sweeney: It's an objective... it's an objective test.

And if the, if the rule, if the bright-line rule is, does not require specific justification, which we contend it does not then, then the officers can conduct the sweep of the premises.

Unknown Speaker: Well, I am sure the police chief would say make it standard operating procedure.

Every time you arrest a person within the home, make a sweep of the entire house and keep your eyes open.

It seems to me a very prudent law enforcement practice.

Mr. Sweeney: It, I would agree with you.

It could very well be a very prudent law enforcement practice.

Unknown Speaker: Do you expand the... do you expand the reason that you urge for making the sweep for persons to make sure that there is no person around that might destroy evidence?

Mr. Sweeney: That is not this case.

Obviously, if the officers see someone who is destroying evidence, or who is--

Unknown Speaker: Well, I understand, but you don't try to include within your rule the advisability of making sure that evidence won't be destroyed?

Mr. Sweeney: --We have not... we have not argued that to this Court.

But obviously that is a, an ancillary event that occurs if a protective sweep occurs.

The primary reason why a protective sweep should occur is for protection.

Now, it will also serve the benefit of preventing the destruction of evidence that may be--

Unknown Speaker: If you find somebody there.

Mr. Sweeney: --If you find... if you find someone.

You never are going to be guaranteed that you will find someone.

But that is precisely the point that I think makes this a particularly appropriate case for a bright-line rule.

Unknown Speaker: Do you think there is any inconsistency between your position and the court's opinion in Chimel, or Chimel, however you want to pronounce that?

Mr. Sweeney: No, I don't believe that there is any inconsistency there.

As a matter of fact, I believe it is a natural extension of Chimel.

In Chimel the court decided that for protective reasons primarily, as I read the case, the officers could do a limited search of the person and a limited search of the wingspan area.

That was to take care of concerns regarding the arrestee.

But--

Unknown Speaker: It also said you can't get outside that area.

Mr. Sweeney: --It said, as I read that decision, it says that in connection with the concern regarding the arrestee.

It does not deal with safety concerns regarding others, regarding accomplices, who may be at the scene.

This--

Unknown Speaker: You mean to tell me that everybody has been reading Chimel not to forbid you to go in other parts of the house when you have an arrest warrant and you make arrest in the house?

Mr. Sweeney: --A... those decisions have read it when there is a search for evidence, that is where Chimel is read to go beyond the wingspan area, to prevent those type of searches.

There has been... Chimel is very interesting because that is when you begin to see the protective sweep cases.

There has been 20 years of protective sweep cases from the 12 circuits, 33 state courts, all recognizing that protective sweeps are prudent police conduct.

It is a natural outgrowth of the Chimel case that, because it did not consider the safety concerns surrounding the arrests that go beyond the arrestee.

This case presents those additional safety concerns.

And Chimel is in fact a bright-line rule--

Unknown Speaker: Why do you want to go all the way to the fourth floor?

Mr. Sweeney: --I am sorry, Justice--

Unknown Speaker: Why do you want to go all the way to the fourth floor for protection?

Mr. Sweeney: --That... that's correct.

Unknown Speaker: Why do you need that?

Mr. Sweeney: Well, because an individual may be on the fourth floor, may be down in the basement, may be anywhere in that house, who could present a danger to the officers.

In this case--

Unknown Speaker: Not if he stayed on the fourth floor.

[Laughter]

Mr. Sweeney: --Well, if he... if the police officers had the reassurance--

Unknown Speaker: If you don't go up there.

Mr. Sweeney: --Well, that is, that... you know, there are many judgments that, regarding police practice or police procedure, that can be... can be... alternatives can be considered, police judgments can be second guessed.

I think one of the things these, this Court's decision teaches, for example in Pennsylvania v. Mimms, about the bright-line rule for individuals to leave the vehicle if the officer requests it at the scene, is that, while that is a very acceptable police practice, the dissent notes that some police manuals counsel the exact opposite of that procedure.

So simply the fact that there may be an alternative procedure is not the type of thing, as this Court said in United States v. Sharpe, that courts should get into second-guessing officer practices.

It is a reasonable Fourth Amendment conduct for police officers to do a protective sweep of the premises--

Unknown Speaker: You mention that one of the reasons for that was for the protection... excuse me.

Mr. Sweeney: --I am sorry.

Unknown Speaker: Why not search the house next door?

It is just as close as the fourth floor.

Mr. Sweeney: That requires the crossing of another threshold.

That requires entry into a home.

Unknown Speaker: It is closer than the fourth floor.

Mr. Sweeney: It may be closer than the fourth floor, but one of the things this Court's decisions have said over and over again is there shall be no breach of the entry, no crossing of the threshold without legal authority.

It is very important to remember that the officers in this case are on the premises lawfully, as a result of the arrest warrant.

Unknown Speaker: In order to enter that house, you not only had to have an arrest warrant with you, but you had to have probable cause to believe the man was there.

Right?

Mr. Sweeney: You had to have the--

Unknown Speaker: You don't need to have a search warrant, but... you can use your arrest warrant, but you have to have probable cause to enter the house.

Mr. Sweeney: --I believe the arrest warrant provides probable cause for the officers to--

Unknown Speaker: Not to enter a house.

Mr. Sweeney: --Well, the officers... if the officers have probable cause to believe that he is there, present,--

Unknown Speaker: Exactly.

But what then... if you can't... if you don't have the probable cause you can't cross that threshold.

Mr. Sweeney: --That is correct.

Unknown Speaker: Right.

And if you haven't got probable cause to believe there is somebody else in the house, why can you go to the fourth floor?

Mr. Sweeney: Well, if you are lawfully on the premises, if you are... if the officers are lawfully on the premises and inside of the house, then the concerns that this Court has enunciated regarding the breaching of the threshold of the house, I think, are... the arrest has to be seen in context at that point.

The... under the Payton decision, the officers can go anywhere in the house to find the arrestee--

Unknown Speaker: Only, only to hunt the arrestee.

Mr. Sweeney: --Only to find the arrestee.

They can go from the fourth floor to the basement, and the additional intrusion here, and remember we are considering Mr. Buie's interest here, the additional intrusion is a minimal intrusion over and above that intrusion which is already authorized by this Court's decisions in Payton v. New York--

Unknown Speaker: You mention that one of the purposes for the sweep search is to protect the safety of others?

Mr. Sweeney: --Yes.

Unknown Speaker: How does that work?

Give me an example.

Mr. Sweeney: I'll give you an example from this case.

There were two girls who were immediately outside the door of the house who could have been in danger if there had been an attack on the officers as the officers were leaving the scene.

They could have been in the line of fire--

Unknown Speaker: Well, that is substantially the same as protecting the officers.

Mr. Sweeney: --I am sorry?

Unknown Speaker: That is substantially the same as... the rationale is to protect the officers from an ambush or an attack?

Mr. Sweeney: An ambush or an attack, to protect the officers, to protect others at the scene, to protect the arrestee himself.

Unknown Speaker: Just from an ambush or an attack?

Mr. Sweeney: I... for any safety concern that an arrest has attendant to it.

I can't think of other... an attack or an ambush, or let's say a young child comes out from a room, and, during the arrest scene, and creates a confusion.

There is a safety dimension to that... to that also.

Unknown Speaker: I was going to ask, suppose there is an unattended child, infant, left in the house after the arrestee is taken.

Is that grounds for a sweep search?

Mr. Sweeney: That not only... not on the basis of the safety to the officers, that obviously is a safety concern regarding others at the... at the arrest scene.

We have not--

Unknown Speaker: Is that one of the grounds that you urge for the sweep search?

Mr. Sweeney: --We have not urged that ground.

Unknown Speaker: General Sweeney, how do you say that there is only minimal additional intrusion?

I mean, let's assume I am being arrested for a securities fraud or something, and I meet them in the anteroom, and I say okay, I am ready to go.

And they say wait a minute, we want to search your house.

And, you know, they walk through my whole house, bedroom, all the rooms.

Why... I think that is... why is that not a terrible intrusion?

Mr. Sweeney: It is not a terrible intrusion.

I would concede it is a greater intrusion than, say, in Pennsylvania v. Mimms, they're just standing outside the car.

But the intrusion has to be measured and balanced against the compelling need for officers' lives and officers' safety here.

Unknown Speaker: Different question, but not whether it is minimal.

Mr. Sweeney: I think it is also minimal in connection with the limits.

It has to be brief, it's got to be quick, it has got to be limited to searches for persons.

I would like to... I am sorry?

Unknown Speaker: Is it clear that it can take place after the arrest has been accomplished?

Do you draw any distinction at all between a pre-arrest sweep and a post-arrest sweep?

Mr. Sweeney: The pre-arrest is governed by the Payton v. New York.

Our vision of the arrest, which is important here, is the arrest is not completed, for safety purposes, until the officers are off of the scene.

Unknown Speaker: Well, supposing in this case... I understand you say the record doesn't support it, but supposing the arrestee had been taken out of the house.

Would it have been then too late to conduct a sweep?

Mr. Sweeney: No, it's... in our--

Unknown Speaker: So you do not draw a distinction between a pre-arrest and a post-arrest sweep?

That is what I am asking you.

Mr. Sweeney: --If the officers were... the post-arrest occurs after the officers and the individual are safely out of the arrest scene area.

I would like to reserve the balance of my time, if I could.

Unknown Speaker: Thank you, Mr. Sweeney.

Mr. Robbins, we'll hear now from you.

Argument of Lawrence S. Robbins

Mr. Robbins: Thank you, Mr. Chief Justice, and may it please the Court:

The Maryland Court of Appeals, in our view, got off to the right start in this case.

It explained correctly that in deciding what legal standard to apply to a protective sweep a court must consider the objective expectation of privacy that may exist and the governmental interest served by the intrusion.

But having taken that first step, the court erred, in our view, in elaborating that rule in this context, by overstating the intrusiveness of a protective sweep and undervaluing the governmental interest to justify those searches.

The court resolved upon what we believe to be an untenable legal standard, that a protective sweep may be conducted only upon a showing of probable cause.

We urge a different rule, the rule that has been approved by virtually every federal circuit other than, I think, the Fifth Circuit, and one that is based on our quite different assessment of the competing interest.

That rule is the one derived from Terry against Ohio, and it is this: Following an arrest inside a suspect's premises, the, a protective sweep is lawful when the police have a reasonable belief that their security is in jeopardy.

Now, that rule--

Unknown Speaker: How would that unfold in this case, on these facts?

Mr. Robbins: --On these facts, Justice O'Connor, we believe that the police did indeed have a reasonably... a reasonable suspicion that their security was at risk in the execution of this arrest warrant.

And we say that--

Unknown Speaker: How so?

Mr. Robbins: --Several factors, we think, combine to make that suspicion reasonable.

First of all, this was a violent crime.

An armed robbery committed only 48 hours before the search.

There was probable cause to believe that an accomplice had participated in that search, that is the result of the issuance of an arrest warrant.

There was a weapon used in the offense; it was an armed robbery.

And finally and critically, there was a strong likelihood that there was at least one other person in the house at the time the police went to arrest the Respondent.

You will recall from the record that just before the police went in, a secretary at police headquarters called up the house to find out if indeed Respondent was home.

They didn't get Respondent on the phone right away, they got a woman of some undetermined age.

She has been referred to as a girl, a young woman.

All we know is that she is a female.

We don't know who she is, how old she is--

Unknown Speaker: I am not sure that I understand why the mere suspicion that another person might be in the house amounts to reasonable suspicion that the officer might be at risk.

Mr. Robbins: --Of course, Justice--

Unknown Speaker: I just, it doesn't track, does it?

Mr. Robbins: --Well, it depends what you mean by the mere fact.

Obviously, we are not relying solely on the fact that there was a good reason to think there was someone else in the house--

Unknown Speaker: Well, suppose that's all you had.

It wasn't a crime of violence for which an arrest was made.

You didn't... the police didn't know that a weapon was used, allegedly, in the offense.

Yet an arrest is made.

Just because another person may be in the house--

Mr. Robbins: --No, no.

Unknown Speaker: --justifies a walk-through?

Mr. Robbins: Not at all.

And we urge no such rule.

Our rule is a rule of reasonable suspicion, and it obviously turns on the presence of all of the factors.

If this were, for example, a securities fraud, to return to Justice Scalia's hypothetical, and the only... the only suspicion you had was that the defendant's three-year-old child was at home, that would hardly, in our judgment, amount to reasonable suspicion.

Reasonableness is as reasonableness does.

Unknown Speaker: Well, what about the woman?

She is not the accomplice.

You didn't suspect that she was the accomplice, did you?

Mr. Robbins: In this, in the present case... there was no way--

Unknown Speaker: All you know is some woman answered the phone.

Mr. Robbins: --Well, of course, it couldn't be... it couldn't be the accomplice in Mr. Buie's case--

Unknown Speaker: Right.

Mr. Robbins: --because it wasn't a woman.

Unknown Speaker: So you had no basis for assuming the accomplice was present.

Mr. Robbins: That's correct... well, there was no basis for believing that the one confirmed person in the house, a woman, was indeed the accomplice, because it wasn't a woman.

Unknown Speaker: And there is no basis for believing she was dangerous, was there?

Mr. Robbins: Well, there was no basis for eliminating that prospect.

And given the fact that this was a violent crime, with in all likelihood a weapon in the house and a high risk to the police in executing such an arrest the fact that there was some person in the house--

Unknown Speaker: But you know what strikes me as strange about this case, the man was in the basement and he was armed, I gather, might have been armed, and they didn't go into the basement when they thought he was there, did they?

Mr. Robbins: --They called down--

Unknown Speaker: Freeze.

Once he came out they went right down in the basement.

Did they think somebody else armed was in the basement, do you suppose--

Mr. Robbins: --I think, Justice Stevens--

Unknown Speaker: --that was about to shoot them?

Mr. Robbins: --I think, Justice Stevens, what they thought, or in any event what the objective factors would have justified them in thinking, was that in fact another person could well have been in the house and would pose a risk of interference with that arrest and a risk of injury to the police.

Unknown Speaker: Do you think there was a greater risk of violence by entering the basement or staying out of the basement?

Mr. Robbins: Well, I think that's that kind of judgment that cops have got to be allowed to make.

Unknown Speaker: Well, but the judgment this cop made was I am not going in the basement until this fellow comes out.

Mr. Robbins: Well, he took, I think, a less intrusive first step.

And that is a sensible thing.

Come up if you are there.

But I don't think that he was obliged to eliminate from his mind the very real prospect that in this set of facts a reasonable... a reasonably founded suspicion of risk was present.

Unknown Speaker: Mr. Robbins,--

--May I just ask one other?

Could he have waited until the suspect was safely in the police car before he went down in the basement?

Mr. Robbins: I think that once he--

Unknown Speaker: It would minimize the risk if he got that man out of the way first.

Mr. Robbins: --Well, if the question is whether he can go back in--

Unknown Speaker: The question is whether, if he took... they got the man in the police car and they waited at the head of the stairs to the basement, after they got him in the police car, could they have gone into the basement?

Mr. Robbins: --I think that would be a much harder case.

Unknown Speaker: I know it's a harder question.

What's the answer?

Mr. Robbins: If they were all entirely out of the house, and Mr. Buie was in the police car, I don't think they could go back in--

Unknown Speaker: No, no, no.

I didn't say that.

I said they got the suspect into the police car, however men it took to do that.

There are three or four officers still in the house; they see him in there.

Can they now go down in the basement?

It's a simple question.

Mr. Robbins: --On this, on the set of facts presented in this case, I think the answer is no.

On the other hand, Justice Stevens, I think this Court's Fourth Amendment cases make clear that the simple fact that one can imagine a less intrusive way of doing the same operation does not make it unreasonable to do it in the way that they did it.

Unknown Speaker: Well, why is it any less intrusive to wait 30 seconds until they get him out to the car?

It's exactly the same intrusion when they go down to the basement.

Why is it less intrusive?

It's just less dangerous.

Mr. Robbins: Well, I... I am not at all persuaded that it would be less dangerous to wait... if they believed, as they did, that there was someone else present in the house, the process of taking--

Unknown Speaker: How do you know they believed someone was in the basement?

They didn't say that.

Mr. Robbins: --No, that's correct.

They didn't testify to that.

On the other hand, I believe the facts are sufficient to justify a reasonable belief that they were at risk.

And during the process of taking the suspect out of the house, that risk continues.

And the question is how are the police to eliminate that risk, or at least minimize that risk?

Now, what--

Unknown Speaker: Was that risk on the fourth floor?

Mr. Robbins: --I am sorry, Your Honor?

Unknown Speaker: Was that risk on the fourth floor?

Mr. Robbins: I believe it was, yes.

Unknown Speaker: What basis do you have for that?

Mr. Robbins: Well, I think, Your Honor, that where you are dealing with weapons and an armed robbery and the possibility of violence, the fact that someone is on the fourth floor rather than in the next room--

Unknown Speaker: Would that cover the roof?

Mr. Robbins: --I am sorry, Your Honor?

Unknown Speaker: Would it cover the roof?

Mr. Robbins: Well, I think at some point--

Unknown Speaker: You don't know where it is, do you?

Mr. Robbins: --Well, Your Honor, I think the question is one of reasonableness.

At some point--

Unknown Speaker: Well, what about the reasonable rule that you should search the area where he is?

Mr. Robbins: --Well, I wouldn't... I wouldn't say it is reasonable only to search his arms reach, because the risk--

Unknown Speaker: Why not?

Mr. Robbins: --Well, because the risk of people interfering with an arrest stem from more than the place where the suspect--

Unknown Speaker: Well, how can anybody on the fourth floor stop you from taking the man out the front door?

Mr. Robbins: --By shooting him.

Unknown Speaker: From the fourth floor?

Mr. Robbins: That happens all the time.

Unknown Speaker: When?

Mr. Robbins: And I think the police are--

Unknown Speaker: When?

You say all the time.

That's no answer.

Mr. Robbins: --Well, Your Honor--

Unknown Speaker: You can't shoot... how can you shoot down through the floors?

Mr. Robbins: --Your Honor, the possibility that there can be ambush from rooms on a different floor is just not that far fetched.

Unknown Speaker: There is a possibility that you could be ambushed from the fourth floor, if you are on the basement?

Mr. Robbins: Your Honor, the question is whether this arrest will be allowed to take place, and whether the police have a reasonable apprehension of injury.

And I think that the fact that somebody may be outside the arms reach of the suspect--

Unknown Speaker: xxx a locked door, do you have a right to break that in?

Mr. Robbins: --I think that would make it a harder case to justify.

Unknown Speaker: Would it?

Mr. Robbins: The answer is, of course, in any other reasonable suspicion... as in any other reasonable suspicion is, it depends.

I suspect in this case it would not have been a reasonable police practice for them to do that.

But recall, all they did here was to go one flight below the very place where their man was in custody.

That was reasonable.

Unknown Speaker: xxx the fourth floor.

You and your attorney general brought the fourth floor in.

Mr. Robbins: What I have said is--

Unknown Speaker: You want us to say fourth floor.

Mr. Robbins: --You don't have to in this case.

What I am saying is don't preclude them--

Unknown Speaker: You want us to--

Mr. Robbins: --I am saying, Your Honor, that you needn't have a rule that precludes the police, in an appropriate case, from looking beyond the floor that they happen to be on.

If, for example, it was the Palace of Versailles, you wouldn't have to go in the next wing.

But in a small house you may have to go upstairs.

Unknown Speaker: --[inaudible] many robbers in Versailles.

[Laughter]

Thank you, Mr. Robbins.

Mr. Kopolow, we'll hear now from you.

Argument of John L. Kopolow

Mr. Kopolow: Thank you, Mr. Chief Justice, and may it please the Court:

There are a number of points I would like to respond to that came up in the arguments we just heard, beginning with the question of whether there was a reasonable belief, following in other words, or assuming for the time being, the Solicitor General's preferred standard.

What has to be remembered is that the reasonable belief must be particularized.

In a situation like this there has to be a reasonable belief that someone is in the particular place to be searched, in other words, in this case, the basement.

Now, the Solicitor General--

Unknown Speaker: Why must it be that particularized, Mr. Kopolow?

You mean, you have to feel that someone is in the basement, rather than on the second floor?

Mr. Kopolow: --Well, in this particular case the police had searched, apparently, through the rest of the house.

There was one remaining place that had not been checked for security purposes.

So, they would have to at least believe that someone dangerous was in the house, and the remaining place that he or she could have been would have been in the basement.

Unknown Speaker: After having searched the other part.

Mr. Kopolow: After having searched the rest of the house.

But the police did not articulate on the record any facts that could reasonably allow them to believe that a third person was in the house.

Let's begin with, in fact, the two people that the Solicitor General has mentioned.

First, the accomplice.

The police did not articulate any facts indicating the accomplice had ever been in Mr. Buie's house.

And, in fact, the two-day surveillance, which apparently began at least on the same day as the robbery, tends to eliminate that even as a possibility.

The Solicitor General has also mentioned the girl or female, she was described both ways, who answered the phone.

And what that really amounts to is shear conjecture about at some point three girls being in the house.

And the reason for that is that the police officers testified that as they approached the house and entered the house they found two girls on the front steps outside.

In order for them to be able to conjecture about three girls, they may as well conjecture about four or five, or a gang of 20 girls in the house.

Unknown Speaker: Well, if there is... I suppose if they found two girls in the house, and one... and found one man, it might be more than conjecture to think that there was a second man in the house.

[Laughter]

Mr. Kopolow: Well, I don't think that is anything more than conjecture, Your Honor.

I don't know there is any more reason to believe that the sexes are always paired one by one in every situation.

Unknown Speaker: How old were the girls?

Were they little girls, or--

Mr. Kopolow: The record doesn't show.

Unknown Speaker: --Of course not.

Mr. Kopolow: The record only indicates as... indicates that they were female, and at other points they are referred to as girls.

The point is that there were no facts that they could point to indicating that a third girl was in the house.

Now, I would like to turn also to the argument that is put forth, the primary argument put forth by the Attorney General, and that is that--

Unknown Speaker: Well, before you get there, because I am interested in it, the... there were two arrest warrants, both for, for both... both were for males, were they not?

Mr. Kopolow: --Yes, they were.

Unknown Speaker: And it is reasonable to conclude that robbery accomplices know each other?

Mr. Kopolow: I would think that's reasonable.

But simply because two people know each other, I don't think it is reasonable to conclude that they are inseparable.

And I don't think it is reasonable even to conclude, especially when you have a surveillance, which presumably is designed to keep track of who has gone into the house and come out of the house, and when there is no testimony that they saw the accomplice in the course of that surveillance, I don't think it is reasonable to assume that the accomplice was with Mr. Buie at the time.

Unknown Speaker: Well, to search the house under the arrest warrant for the accomplice they would have to have probable cause to believe he was in the house.

Mr. Kopolow: To search a house for the accomplice, under an arrest warrant for the accomplice, they would have to in fact have a search warrant for Mr. Buie's house.

Unknown Speaker: Oh, not really, not under Payton.

Not under Payton.

You can go into a house with an arrest warrant.

Mr. Kopolow: Well, I understood you to say that--

Unknown Speaker: If you have probable cause to believe he is there.

Mr. Kopolow: --I understood you to say that it was a search for the accomplice.

Unknown Speaker: Well, you couldn't go search this house for the accomplice unless you had probable cause to believe he was there, could you?

Mr. Kopolow: I believe you would not only need probable cause, you would need a search warrant to search Mr. Buie's house for a third party.

That is the holding of Steagald.

Unknown Speaker: Well, that is... you mean in Buie's house.

Mr. Kopolow: Yes, to search Buie's house for the accomplice.

Now, state seems to be saying that it is prudent in every case, and they didn't specifically state this, but they seem to be suggesting that it is routine in every case.

Well, on the matter of whether it is routine or not, I would simply point out that if it's routine, then police are routinely violating the decisions of virtually every court in this country.

Because all of them, as the Solicitor General has pointed out, adopt at least a reasonable suspicion Terry-type standard.

A great many of them prefer the probable cause standard, which was adopted by the court below.

I don't think we can assume that police throughout the country are routinely violating all those decisions, at least without something in the record proving the contrary.

Unknown Speaker: Your previous argument has been directed to the point that the state hasn't even shown reasonable suspicion here, hasn't it?

Mr. Kopolow: Yes.

And now I am addressing whether they can do it simply as a matter of course, the bright-line per se rule.

Unknown Speaker: The state's argument.

Mr. Kopolow: The state's argument.

It, perhaps, from a subjective police point of view, is prudent to check the house for possible third parties in every case.

But I think that particular point of view ignores the other side of the equation that has to be balanced, which is the privacy rights of the people that inhabit the house.

In fact, the Fourth Amendment in general does require some degree, at least, of particularized suspicion.

Now, in order to overcome that normal requirement, the state would have to show first that there is a relatively minimal intrusion here.

And I think the intrusion that is involved in a protective sweep is really akin to the intrusion of a full-blown search of a house.

It involves opening up the private places of a house.

Perhaps, at least within the state's view of a protective sweep, it's limited to the extent that the police could not go into small spaces, such as drawers.

But the state, I believe, would concede that they can open up closet doors.

And I think what is inside a closet may be just as private to a reasonable individual as what is inside a drawer.

So, I think in character the protective sweep is essentially the same as a full-blown sweep, which is perhaps, as far as searches of places, the most closely protected kind of intrusion.

Unknown Speaker: A full-blown sweep, in your view, would not authorize the opening of desk drawers and that sort of thing?

Mr. Kopolow: No, I am... I would define a full-blown sweep... I am sorry, a full-blown search, as one which includes opening up desk drawers, and I--

Unknown Speaker: Well, certainly a full-blown search differs in that respect from a protective sweep.

You can't open drawers, and that sort of thing.

Mr. Kopolow: --There is perhaps a difference in degree, Your Honor, between what the state is advocating and a full-blown search.

But I am saying that in their essential character they are really the same, because they allow the police to go into very private places, to open up to view very private places.

Unknown Speaker: But certainly many people would feel that it is an even, certainly a considerable additional intrusion, the opening of drawers and that sort of thing, which is not allowed in this.

So, there's people who wouldn't agree with you; I think they would say there is a difference in degree.

Mr. Kopolow: I think it is only a difference in degree.

But I would also ask, or say, in regard to whether there should be a per se rule, that there is a line drawing question.

There must be a reasonable line drawn as to how far they can go in several respects, one of which is this question of how intense, or how thorough the search can be.

I would suggest this example.

Assume that a protective sweep is conducted and an individual is found in the house.

Under a per se rule where there is an automatic right, would there then become an automatic right to go into a drawer, which is proximate to that particular person, to make sure that there is not a weapon there that he can grab.

I think if the police are, if the justification for the search is wholly protective, and there is an automatic per se rule, that really the protective sweep should not be limited in the sense the state is suggesting.

It should even include that particular example.

Unknown Speaker: Do you know if the state's attorney were at the podium, what would their answer be if I said what do you do when you find this person?

Mr. Kopolow: What would his answer be?

Unknown Speaker: Yeah.

Mr. Kopolow: Certainly that individual has, himself, Fourth Amendment rights.

I would think they would need at least a reasonable suspicion that that person poses a danger before they could even do a Terry type--

Unknown Speaker: Can they order the person to leave, to go outside?

Mr. Kopolow: --If I were the state's attorney, you want me to answer that question?

Unknown Speaker: Yes.

[Laughter]

xxx Respondent.

Mr. Kopolow: Who is on the other side?

[Laughter]

Unknown Speaker: You can answer both ways.

Do the cases talk about this?

Mr. Kopolow: I don't recall them talking about that particular aspect of the problem, because in each case that I have read anyway, they are concerned about the rights of the person who was arrested.

Unknown Speaker: Not in Michigan against Summers.

Mr. Kopolow: Of course, the closest case I know of is Ybarra v. Illinois, which involved a search pursuant to a search warrant of a bar, a public establishment.

And in that case this Court held that there had to be reasonable suspicion before a patron of the bar could be frisked.

Unknown Speaker: Well, what about Michigan against Summers?

Are you familiar with Michigan against Summers?

Mr. Kopolow: Yes, I am.

I think that's a quite different situation, because--

Unknown Speaker: But the persons attained there, there was no suspicion against them.

Mr. Kopolow: --But the court said that there was... that the very circumstances amounted to individualized and articulable suspicion.

The fact of the search warrant for the house indicated there was probable cause to believe that criminal activity was taking place in the house, and that automatically translated into at least individualized and articulable suspicion with respect to any occupant of the house.

And that... that's what justified a brief detention.

I would also point out that I believe the intrusion in this case is a much more severe intrusion than a brief detention.

Unknown Speaker: But is it not true that the intrusion is precisely the intrusion that is permissible if they don't find the arrestee right away?

If they have to search, they can search the whole house and the areas that you are concerned about until they find him.

Mr. Kopolow: Well, that may be true, but to answer your question with an example, that would be the same as saying... let's say the... there is a search warrant to search a house for a--

Unknown Speaker: You have to discontinue the search when you find what you are looking for.

Mr. Kopolow: --Yes, to be a particular--

Unknown Speaker: And that is why I was suggesting... I don't know whether you draw a distinction or not, between the portion of the sweep that is continued after the arrest is made and that which is conducted while you are looking for the person and while you are not sure that you have him under... in custody.

Mr. Kopolow: --Well, I think, isn't that a question, Your Honor, of what authority the police are given under an arrest warrant?

And I think the answer to that question is that their authority to act pursuant to the arrest warrant ends as soon as the arrest is made.

Now, there may be circumstances which would permit a further search, but that depends on the particular circumstances.

If the police can demonstrate on the record a need for an additional search--

Unknown Speaker: Well, for example, in this very case they didn't find him in the basement right away.

They immediately went upstairs to different floors, as I remember the facts.

I don't think... of course, they didn't find anything upstairs.

But you don't... or do you... do you challenge the validity of the portion of the sweep that took place before they knew he was in the basement?

Mr. Kopolow: --We do not challenge the validity of the portion of that sweep.

Unknown Speaker: Before they found him.

Mr. Kopolow: Before they found him.

But our contention is that once the arrest is accomplished, their authority to act pursuant to the arrest warrant ends, and they must point to additional circumstances.

That leads to a point that Justice Scalia was making about whether they in fact took reasonable action once they had made the arrest.

Now, of course, the cases do not require the police to take the less intrusive alternative when two alternatives are both reasonable.

But I think on the facts of this case, what Justice Scalia was suggesting indicates that the action that they did take was unreasonable.

On the one hand, the action that they did take was that an officer, purporting to fear somebody down in the basement, went down there with no apparent precautions taken, apparently not even his gun drawn, and in fact was setting himself up as easy prey for an ambusher.

On the other hand, what they could have done, which is what at least they began to do, which is they whisked Mr. Buie out of the house, and then an unintrusive additional action, which to me is perfectly sensible, would have been simply to station somebody in the hallway of the house in a protected position, so that if there was a chance of somebody coming up out of the basement they would have the drop on that individual, rather than vice versa.

So this is a situation where I think the failure to take the less intrusive alternative in fact makes the alternative that they did take unreasonable.

Unknown Speaker: What is your submission as to what level of... what would be required to authorize a sweep in connection with an arrest?

Mr. Kopolow: We believe the Court of Appeals of Maryland was correct, and--

Unknown Speaker: Probable cause?

Mr. Kopolow: --probable cause is required.

And the reason is that, as the opinions of this Court have shown, that in residential situations danger to the police is not enough to compromise the probable cause standard.

And perhaps the clearest example of that is the hot pursuit situation, where, if the police are in hot pursuit of an armed robber and he enters a residence, they can go in, if they have probable cause, they can go in to arrest him and to search for weapons.

If they have only articulable suspicion, they can't do so, even though there is, as the Court has pointed out in Warden v. Hayden, a great risk to the police officers.

Unknown Speaker: Do you think that the state's submission and the Solicitor General's submission, either one of them or both, are contrary to Chimel?

Mr. Kopolow: I think they certainly put Chimel in great danger.

Chimel indicated that in order to do a search past the time of the arrest, a search other than the area into which the arrestee may reach, there would need to be probable cause and a warrant.

Unknown Speaker: Well, not only that, but Chimel said you needed a warrant.

Mr. Kopolow: Probable cause and a search warrant.

Unknown Speaker: Even if you had probable cause you needed a... probable cause wasn't enough.

Mr. Kopolow: That is my reading of Chimel as well.

Unknown Speaker: Because the... I was in that case, and I said they shouldn't have restricted the search if there was probable cause.

And the majority said no, you need a search warrant.

Mr. Kopolow: And if I remember your opinion correctly, you even pointed out, in your opinion, that the man's wife was there would could have presented some risk at least to the evidence.

Yet, notwithstanding that, the search was very limited.

Unknown Speaker: Let me ask you a question, if I may, Mr. Kopolow.

In some of these hypotheses we have been talking about, you know, which was the sensible thing for the police to do, et cetera, do you think some latitude has to be given to the judgment of the people who have been... the police who have been through these things?

Do you think lawyers and judges can apprehend just as well from a record what the real dangers of the situation were, than the police?

Mr. Kopolow: I think some latitude has to be given, if they are able to articulate the reasons for their actions on the record.

In this case what we have is the police officer being asked flat out did you have any reason to believe anybody other than Mr. Buie was in the house.

His answer was I didn't know who lived there.

In other words, he did not have any reason to believe--

Unknown Speaker: Well, but that isn't saying, that isn't a negative answer to that question.

It may, it is not a positive answer.

It may be an evasive answer, but it is not a negative answer.

Mr. Kopolow: --Well, I think it is certainly an invitation for him to state, to articulate his reasons, which is at least what the Terry standard requires.

He didn't... he declined the invitation to do that.

Unknown Speaker: Well, supposing a police officer can state enough about the situation as he apprehended it, which someone else would find reasonable, to lead someone else to say, you know, this is the basis on which a search could have been conducted.

Does all the reasoning have to have come from the police officer?

Mr. Kopolow: I think there at least have to be reasonable inferences drawable from what the police officer said.

Unknown Speaker: But must he be the one that... supposing that... a court feels it can draw reasonable inferences from what has been testified to by a police officer.

Is that enough, even though the police officer may not have himself, in testimony, drawn them?

Mr. Kopolow: I would say that on this record that even those facts, that would permit a reasonable court to draw the inferences, are lacking.

If you are asking me does the police officer have to articulate reasons with the precision that presumably lawyers and judges might do so, no, I wouldn't make that expectation of a police officer.

But he does have to at least give reasons, in this case, that would support a belief that somebody else was in the house, somebody else dangerous.

And that is simply lacking.

Unknown Speaker: Mr. Kopolow, I am not sure I would like to conduct an arrest on those... on those terms.

I mean, when my life is at stake, why should I assume, unless I have reason to believe otherwise, that there is nobody else in the house.

Why... wouldn't a careful person, dealing with an armed robber, assume, unless he has reason to believe otherwise, that there is somebody else in the house?

You're dealing with violent people.

Isn't that an unreasonable thing to ask the police to assume, just assume that there is nobody else, unless you have good reason to believe there is?

Mr. Kopolow: I think what Your Honor is doing is saying... is really presuming the reasonableness of the search based on the fact that the basement was entered.

But the law says that the search is presumed to be unreasonable unless the police can sustain the burden of articulating facts, particularized to the particular place that they are searching.

And the reason for that, and perhaps I am repeating myself, is that... what my understanding of the attitude that you are expressing is that perhaps in some subjective sense it is reasonable for the police to act that way.

But that is not taking into consideration the countervailing interests of privacy, and the Fourth Amendment, as interpreted by this Court, has always required the police to articulate specific facts.

Unknown Speaker: The specific reason is I am arresting a violent felon, and I don't know for sure that there is nobody... nobody else in there other than this violent felon, who is going to hurt me while I am arresting them.

Now, you know, I agree with your point of view that that doesn't open the whole house up, you can be very limited in the search.

But if I were arresting a particularly violent person, I would not adopt the assumption that there is nobody else in the house.

I would adopt the assumption that there was somebody else.

Mr. Kopolow: Well, the problem with that is, is Fourth Amendment intrusions really based not on the information the police have, it's based on the lack of information the police have.

The only information that I believe you have articulated just now is that this was a violent crime.

But the fact that this is a violent crime doesn't say anything about who else may be in the house.

That is simply a non sequitur.

Unknown Speaker: Well, it says something about the possible characteristics of another person in the house, if they might be there.

Mr. Kopolow: It depends, perhaps, on who the person is.

I assume you are thinking of the accomplice.

Unknown Speaker: Yeah, but you know, we can't reduce every one of these things to a strictly logical proposition governed by Marquis of Queensbury rules.

There has got to be some play in the joints.

And there are cases that have said that.

Mr. Kopolow: Well, I think what Your Honor is coming down... is coming back to, is a per se rule, that in every case the police should be able to sweep through the house.

And I don't think it can be limited, really, to the boundaries... it can be rationally limited to the boundaries of the house.

For instance, as was suggested in the earlier arguments, might not the police sense danger from a neighboring apartment, if it involves the sweep of an apartment?

Unknown Speaker: But police procedures, police training, don't require them to assume that the best possible circumstances prevail when they make an arrest.

It requires them to assume that the worst possible circumstances may prevail.

Everybody's handcuffed when they go into the police car.

Everybody... every stopped car is approached at night with the same degree of caution.

And police are trained this way.

And it seems to me rather difficult for you to ask us to make the assumption that safety conditions will generally prevail, or that a safe condition would generally prevail when they enter into a home.

Mr. Kopolow: In the context of a Terry stop, the police cannot assume that the suspect is armed and dangerous.

Yet that is a possibility in every case.

The police officer has to point to some... some particular facts.

That is my understanding of how the Fourth Amendment cases have been developing.

To translate that particular holding into this case, the police cannot assume that someone else, someone else dangerous, is in the basement.

They have to--

Unknown Speaker: Of course, of course in that case, articulated suspicion suffices.

And you would say articulated suspicion suffices in this case.

That is short of probable cause.

Mr. Kopolow: --Well, I am assuming that we are talking about the Terry standard.

I don't want to be interpreted as espousing the Terry standard.

I still believe, for the reasons I stated earlier, that probable cause--

Unknown Speaker: Well, but we have held in Terry that you need, you do not need probable cause to protect the safety of the officer when he has some articulated suspicion to believe that crime is afoot.

Mr. Kopolow: --If he has articulated suspicion that crime is afoot he can make the stop.

He cannot go any further unless he has articulated suspicion that the person he has stopped is armed and dangerous.

And translated into this case, he has to have articulated suspicion that somebody who is dangerous is in the basement.

Unknown Speaker: I think some of our more recent cases have allowed the person... an officer to go further than just the frisk in connection with a Terry stop.

I think Michigan against Long did, and I think another case has.

Mr. Kopolow: Well, there again, once the stop... in Michigan v. Long, once the stop is lawfully made, there cannot be an automatic search of the car, the passenger compartment of the car, for weapons.

There has to be articulated suspicion that there may be weapons in the car and that the person stopped is dangerous.

I think that is the clear holding of Michigan v. Long.

Well, unless Your Honors have further questions, thank you.

Chief Justice Rehnquist: Thank you, Mr. Kopolow.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: No. 88-1369, Maryland against Buie will be announced by Justice White.

Argument of Justice White

Mr. White: For the reasons stated in an opinion on file with the Clerk, we vacate and remand for further proceedings the judgment of the Court of Appeals for Maryland.

Justices Stevens and Kennedy have filed concurring opinions; Justice Brennan has filed a dissent in which Justice Marshall joins.