STATE OF MARYLAND, PETITIONER V. JEROME EDWARD BUIE

   No. 88-1369

   In the Supreme Court of the United States

   October Term, 1989

   On Writ of Certiorari to the Court of Appeals of Maryland

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The "protective sweep" of respondent's basement was lawful
      under the Fourth Amendment
      A. Following an arrest inside an arrestee's premises, police
         officers may conduct a "protective sweep" of the premises,
         where they have a reasonable belief that their security
         is at risk
         1. Where the balance of competing interests permits, police
            officials may conduct searches and seizures without a
            warrant and on less than probable cause
         2. Under these principles, the police may perform a
            "protective sweep" if, after arresting a suspect inside
            his home, they have a reasonable belief that their
            security is at risk
      B. The "protective sweep" of respondent's basement was lawful
   Conclusion

                          QUESTION PRESENTED

   Whether, having arrested an armed robbery suspect in his home
pursuant to an arrest warrant, police officers may conduct a
"protective sweep" of the premises on less than probable cause.

                     INTEREST OF THE UNITED STATES

   This case presents an important question concerning the power of a
law enforcement officer to protect himself when he arrests a suspect
inside that suspect's home.  Federal law enforcement authorities
routinely make such arrests, and the resolution of this issue will
determine the extent to which such officers may protect their safety
by conducting a limited "protective sweep" of the premises.

                               STATEMENT

   1. At about noon on February 3, 1986, two men entered a Godfather's
Pizza restaurant on Annapolis Road in Prince George's County,
Maryland.  The taller of the men, who was wearing a red jogging
outfit, held a handgun, while the shorter of the two ordered Laurie
Graham, the manager, to open the store's safe and cash register.
After taking a sum of money, the two men left the store and drove
away.  About 15 minutes later, the police showed Ms. Graham several
photographs, and she identified from among them two persons she
recognized as the robbers.  One of those was respondent, and the other
was respondent's friend, Lloyd Allen.  Tr. 1-44 to 1-48, 1-57 to 1-61,
1-74.

   At a suppression hearing before trial, police officers James T.
Rozar and Joseph Frolich explained that following the robbery the
police obtained arrest warrants for respondent and Allen.  On February
5, the police made arrangements to arrest respondent.  To be certain
that respondent was at home, a secretary at police headquarters made a
telephone call to respondent's house.  An unidentified female answered
the telephone, after which the secretary spoke with respondent.  About
six or seven officers then went to respondent's house to execute the
warrant.  Pet. App. 3-4;  Tr. 1-18, 1-21, 1-24.

   Once inside the house, two officers covered the main floor, while
two others went upstairs.  Officer Rozar then announced that he would
"freeze the basement" to ensure that no one could surprise the
officers from behind.  With his service revolver drawn, Officer Rozar
shouted into the basement, ordering anyone who might be down there to
come up.  After two such calls went unanswered, respondent emerged
from the basement and came upstairs.  Officer Rozar arrested him and
placed him in handcuffs.  Pet. App. 4-5;  Tr. 1-12 to 1-15, 1-24.

   Concerned that someone else might be in the basement, Detective
Frolich went downstairs.  There, in plain view atop a stack of
clothing, was a red jogging outfit that matched the one worn by the
taller of the two robbers.  Detective Frolich seized the suit, and it
was later admitted as evidence at trial.  No one other than respondent
was found inside the house.  Pet. App. 5-6;  Tr. 1-19 to 1-23;  Tr.
2-48 to 2-49.

   2. The trial court denied respondent's motion to suppress the
jogging suit (Tr. 1-29), holding that "based on the facts of this
case" the police "had a right to search" the basement and to seize the
suit.  The court explained that at the time respondent emerged from
the basement "the police (did not) know how many other people (were)
down there." Moreover, the court observed, respondent had been
"charged with a serious offense." The trial court therefore concluded
that the officers had "acted reasonably in this case * * *." Ibid.
/1/

   Following a jury trial, respondent was convicted of robbery with a
deadly weapon and using a handgun in the commission of a felony.  On
December 30, 1986, respondent was sentenced to a total of 35 years'
imprisonment.  Pet. 9;  Tr. 2-136 to 2-137.

   3. The Court of Special Appeals affirmed.  Pet. App. 46-81.  The
court recognized that under the Fourth Amendment "the sanctity of a
person's home -- his castle -- requires that the police may not invade
it without a warrant except under the most exigent of circumstances."
Id. at 74-75.  It explained, however, that "once the police are
lawfully within the home, their conduct is measured by a standard of
reasonableness." Id. at 75.  "(I)f there is reason to believe that the
arrestee had accomplices who are still at large," the Court of Special
Appeals stated, "something less than probable cause -- reasonable
suspicion -- should be sufficient to justify a limited additional
intrusion to investigate the possibility of their presence." Id. at
75-76 (emphasis in original).

   In the present case, the Court of Special Appeals concluded, the
police had met that standard.  The court noted that Detective Frolich
had gone into respondent's basement "to look for the suspected
accomplice or anyone else who might pose a threat to the officers on
the scene." Pet. App. 64.  In conducting the protective sweep, the
court added, the officers "knew two arrest warrants had been issued in
connection with the armed robbery of the pizza shop." Ibid.
Accordingly, the court reasoned, Detective Frolich "went downstairs
not to search for evidence but to see if someone else was there * * *
who might pose a danger to him or his fellow officers." Id. at 64-65.
/2/

   4. The court of appeals reversed by a divided vote.  Pet. App.
1-45.  The court explained that "(w)hen we assess the seriousness of
an intrusion, whether it be a protective sweep or some other type, we
consider the objective expectation of privacy that may exist, as well
as the governmental interest served by the intrusion." Id. at 17.
"Thus," the court continued, "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." Ibid.  By
contrast, the court stated, "'when the sanctity of the home is
involved, the exceptions to the warrant requirement are few.'" Id. at
18-19 (citation omitted).  For that reason, the court held, "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." Id. at 19 (citation omitted).

   Applying that standard, the court of appeals held that the
protective sweep conducted by Detective Frolich was unlawful.  The
court recognized that at the time he entered the basement the officer
was aware that respondent "had been accompanied by an accomplice,
Allen, when the robbery was committed." Pet. App. 23.  The court
explained, however, that "the police had no information supporting a
serious and demonstrable likelihood that Allen was in the dwelling at
the time of (respondent's) arrest or had ever been or even visited
there." Id. at 35.  The court also acknowledged that "a gun had been
used in the robbery," but it discounted that fact because the gun had
not specifically been "mentioned at the suppression hearing." Ibid.
And while the court recognized that the pre-arrest telephone call had
indicated that a woman was present in the house along with respondent,
the court concluded that there was not sufficient "probable cause to
support a reasonable belief that an accomplice was in (respondent's)
home, that other confederates might have been there, or that any other
serious and demonstrable potentiality for danger existed." Id. at 35,
36.  The court of appeals therefore held that the red jogging suit
should have been suppressed.  Id. at 36-37.

   Judge McAuliffe dissented in an opinion joined by two other judges.
 Pet. App. 38-45.  The majority went astray, he explained, by
"considering the intrusion in this case exactly as if it were a
warrantless entry across the threshold of the home." Id. at 39.  In
fact, Judge McAuliffe noted, the officers "crossed the threshold of
this home in strict compliance with the Fourth Amendment" because they
had a warrant for respondent's arrest and they had reason to believe
that he was at home.  Id. at 40.  Accordingly, he reasoned, "(t)he
question in this case is not the nature of exigent circumstances
required to justify the warrantless entry into a home, but rather the
exigency that will justify a limited additional intrusion following a
prior valid entry." Ibid.

   In the present case, Judge McAuliffe stated, several factors
demonstrate the reasonableness of the officers' intrusion.  First, he
noted, the fact that the police could have gone into the basement to
seek out respondent before he came upstairs reduces "the level of
expectation of privacy that the law will reasonably afford to
(respondent) concerning items in plain view in the basement." Pet.
App. 42.  Second, Judge McAuliffe stated, the police did not conduct a
"full-blown search()," such as "the opening of desks or the
examination of documents," but only a "limited search for a person or
persons" -- a search that is "less intrusive" and that "may be
accomplished fairly quickly." Id. at 42-43.  In addition, he observed,
"(t)he police had probable cause to believe that the armed robbery
which had occurred 48 hours earlier had been committed by two persons
-- (respondent) and Lloyd Allen" and "the police did not know how many
* * * persons might have been present" in respondent's house.  Id. at
43-44.  Judge McAuliffe concluded that it was reasonable for the
police to make a quick sweep of the basement from which respondent had
emerged, "whether to check for the presence of the accomplice who had
so recently been involved with (respondent) and an armed robbery, or
to protect themselves from others who might have been hiding with
(respondent)." Id. at 44.

                          SUMMARY OF ARGUMENT

   The court of appeals suppressed the red jogging outfit in this case
because, in the court's view, a protective sweep in a suspect's home
may be conducted only upon a showing of probable cause to believe that
the police are faced with "a serious and demonstrable potentiality for
danger." Pet. App. 19.  We believe that the court of appeals set too
high a legal threshold for searches of this kind.  In our view, the
correct standard is the one articulated by this Court in Terry v.
Ohio, 392 U.S. 1 (1968), under which a modest intrusion may be
justified where the police have a reasonable apprehension of danger.
Applying that standard in the present case, we believe that the
protective sweep of respondent's basement, and the seizure of the
jogging outfit in plain view, were entirely lawful.

   A. "The fundamental command of the Fourth Amendment is that
searches and seizures be reasonable," New Jersey v. T.L.O., 469 U.S.
325, 340 (1985), and "what is reasonable depends on the context within
which a search takes place" (id. at 337).  The reasonableness of a
particular search practice "is judged by 'balancing its intrusion on
the individual's Fourth Amendment interests against is promotion of
legitimate governmental interests.'" United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985) (citation omitted).

   Applying that balancing test, this Court in a line of cases
beginning with Terry v. Ohio, supra, has held that where the
intrusiveness of a search or seizure is minimal, and the interest in
police safety is compelling, the search or seizure may be conducted
provided the officer "possesses a reasonable belief based on 'specific
and articulable facts which * * * reasonably warrant' the officer in
believing" that he is at risk.  Michigan v. Long, 463 U.S. 1032,
1049-1050 (1983) (quoting Terry, 392 U.S. at 21.) We believe that the
same rule should apply to sweep searches.  A protective sweep --
coming on the heels of a lawful arrest inside a suspect's home --
constitutes a modest, incremental intrusion on the suspect's privacy,
and is narrowly confined to places in which a confederate may be
hiding.  By contrast, the governmental interest in a protective sweep
is surpassing.  Indeed, the threat to an officer's safety during a
custodial arrest may well exceed the risk presented by a typical Terry
stop.

   B. Under the standard articulated in Terry, the protective sweep of
respondent's basement was justified, since at the time of the arrest
the officers had a reasonable basis for believing themselves to be at
risk.  The officers knew that arrest warrants had been issued for
respondent and his accomplice, Lloyd Allen, in connection with an
armed robbery committed only 48 hours earlier.  The prospect that
Allen might be present in the house, armed and prepared to interfere
with the arrest, was entirely plausible.  Moreover, Allen was not the
only person who may have surprised the officers;  respondent's house
had several levels, and more than one person could easily have lived
in it.  In fact, the testimony revealed that prior to the arrest, a
police secretary had called the house, speaking first with an
unidentified woman and then with respondent.  The police did not
locate the unidentified woman prior to respondent's arrest, and she,
too, could have been hiding in the basement at the time of the arrest.

                               ARGUMENT

   THE "PROTECTIVE SWEEP" OF RESPONDENT'S BASEMENT WAS LAWFUL UNDER
THE FOURTH AMENDMENT

   A. Following An Arrest Inside An Arrestee's Premises, Police
Officers May Conduct A "Protective Sweep" Of The Premises, Where They
Have A Reasonable Belief That Their Security Is At Risk

   1. Where the balance of competing interests permits, police
officials may conduct searches and seizures without a warrant and on
less than probable cause

   a. "The fundamental command of the Fourth Amendment is that
searches and seizures be reasonable." New Jersey v. T.L.O., 469 U.S.
325, 340 (1985).  See United States v. Montoya de Hernandez, 473 U.S.
531, 537 (1985);  United States v. Villamonte-Marquez, 462 U.S. 579,
588 (1983).  Thus, "the Fourth Amendment does not proscribe all
searches and seizures, but only those that are unreasonable." Skinner
v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402, 1414 (1989).  See
Carroll v. United States, 267 U.S. 132, 147 (1925).  The test of
reasonableness, moreover, "is not capable of precise definition or
mechanical application." Bell v. Wolfish, 441 U.S. 520, 559 (1979).
See Graham v. Connor, 109 S. Ct. 1865, 1871 (1989).  Rather, in
defining the contours of the right to be free from unreasonable
searches and seizures, this Court has repeatedly said that "'the
specific content and incidents of this right must be shaped by the
context in which it is asserted.'" Wyman v. James, 400 U.S. 309, 318
(1971) (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)).  See also New
Jersey v. T.L.O., 469 U.S. at 337 ("what is reasonable depends on the
context within which a search takes place").

   The Court has established a balancing test to govern this inquiry.
"The permissibility of a particular law enforcement practice is judged
by 'balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests.'" United States v. Montoya de Hernandez, 473 U.S. at 537
(quoting United States v. Villamonte-Marquez, 462 U.S. at 588.  See
also Delaware v. Prouse, 440 U.S. 648, 654 (1979);  Camara v.
Municipal Court, 387 U.S. 523 (1967).  This approach recognizes that
not every invasion of privacy is prohibited by the Fourth Amendment,
but only "arbitrary and oppressive interference by enforcement
officials with the privacy and personal security of individuals."
United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976).  "Where a
careful balancing of governmental and private interests suggests that
the public interest is best served by a Fourth Amendment standard of
reasonableness that stops short of probable cause, (the Court has) not
hesitated to adopt such a standard." New Jersey v. T.L.O., 469 U.S. at
341.

   b. Applying that test, the Court has held that in the context of an
ordinary criminal investigation both probable cause and a warrant are
generally necessary to render a search reasonable.  See United States
v. Karo, 468 U.S. 705, 717 (1984);  United States v. United States
District Court, 407 U.S. 297, 317 (1972).  But as the Court explained
recently in Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct.
1402, 1414 (1989) (citation omitted), exceptions from those
requirements have been permitted "when 'special needs, beyond the
normal need for law enforcement, make the warrant and probable-cause
requirement impracticable.'" Where, for example, "the burden of
obtaining a warrant is likely to frustrate the governmental purpose
behind the search," Camara v. Municipal Court, 387 U.S. at 533, the
Court has consistently held that a warrant is not required by the
Fourth Amendment.  /3/ Similarly, the Court has found that the
probable cause standard is inappropriate where it would defeat the
purposes that the search is designed to achieve.  /4/

   In Terry v. Ohio, supra, the Court applied those principles in a
closely related setting.  There, the Court held that the Constitution
"permit(s) a reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is dealing with
an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime." 392 U.S. at 27.
The Court explained that a frisk for weapons requires "swift action
predicated upon the on-the-spot observations of the officer on the
beat." Id. at 20.  Accordingly, the Court added, a weapons search
cannot be "subjected to the warrant procedure" but must instead "be
tested by the Fourth Amendment's general proscription against
unreasonable searches and seizures," under which the Court must
"'balanc(e) the need to search * * * against the invasion which the
search * * * entails.'" Id. at 20, 21.  Applying that test, the Court
acknowledged that a "protective search for weapons * * * constitutes a
brief, though far from inconsiderable, intrusion upon the sanctity of
the person." Id. at 26.  The Court held, however, that a weapons frisk
is easily justified by "the more immediate interest of the police
officer in taking steps to assure himself that the person with whom he
is dealing is not armed with a weapon that could unexpectedly and
fatally be used against him." Id. at 23.  See also Adams v. Williams,
407 U.S. 143, 146 (1972).

   The Court applied the same principles in Michigan v. Long, 463 U.S.
1032 (1983).  In that case, the Court held that after a police officer
stops a suspect for hazardous driving, he may search those places
inside the passenger compartment of the suspect's car in which a
weapon may be concealed, provided the 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,
392 U.S. at 21).  Expanding the scope of the rule in Terry, the Court
emphasized that "roadside encounters between police and suspects are
especially hazardous, and that danger may arise from the possible
presence of weapons in the area surrounding a suspect." Ibid.

   2. Under these principles, the police may perform a "protective
sweep" if, after arresting a suspect inside his home, they have a
reasonable belief that their security is at risk

   We believe that the balance struck by this Court in Terry and Long
applies here as well.  A protective sweep -- coming on the heels of a
lawful arrest inside a suspect's home -- constitutes a modest,
incremental intrusion on the suspect's privacy, and is narrowly
confined to places in which a confederate may be hiding.  By contrast,
the governmental interest in conducting a protective sweep is
surpassing.  A custodial arrest inside a house typically presents a
greater risk of injury to police officers than a Terry stop, since it
is likely to be prolonged and emotionally charged, and because an
arrest inside a house involves more opportunities for ambush by the
arrestee's confederates.  A police officer should therefore be
authorized to perform a protective sweep where, consistent with Terry,
he has "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 he is at risk.
Long, 463 U.S. at 1049-1050 (quoting Terry, 392 U.S. at 21).

   a. The court of appeals reasoned that a protective sweep following
a suspect's arrest inside his house intrudes upon the sanctity of the
home and, accordingly, may be justified only upon a showing of
probable cause to believe that the situation presents "a serious and
demonstrable potentiality for danger." Pet. App. 19.  That conclusion
overlooks the fact that a protective sweep takes place only after a
suspect has been lawfully arrested inside his home -- a factor that
bears critically on the reasonableness of the search under the Fourth
Amendment.  As this Court explained in Payton v. New York, 445 U.S.
573 (1980), "(i)f there is sufficient evidence of a citizen's
participation in a felony to persuade a judicial officer that his
arrest is justified, it is constitutionally reasonable to require him
to open his doors to the officers of the law." Id. at 602-603.  A
warrant for a suspect's arrest -- or probable cause and exigent
circumstances -- empowers the officers to enter the suspect's home,
fan out through the premises, and continue to search, room by room,
until they come upon him.

   For those reasons, the existence of an arrest warrant (or probable
cause plus exigency) significantly reduces a suspect's reasonable
expectation of privacy.  Armed with either a warrant or exigent
circumstances, officers may "breach * * * the entrance" to the
suspect's home.  Payton, 445 U.S. at 589.  As this Court has
repeatedly explained, among the "zone(s) of privacy" protected by the
Fourth Amendment, none is "more clearly defined" than "the unambiguous
physical dimensions of an individual's home." Ibid.  The "physical
entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed." United States v. United States District
Court, 407 U.S. 297, 313 (1972).  See also Welsh v. Wisconsin, 466
U.S. 740, 748 (1984);  Steagald v. United States, 451 U.S. 204, 211,
231 (1981).  But the existence of a warrant for a suspect's arrest, or
probable cause plus exigency, deprives the suspect of any reasonable
expectation that he can shield the threshold of his home from official
invasion.

   Moreover, because an arrest warrant or probable cause plus exigency
permits officers to seek out the suspect in any place he may be found,
the suspect enjoys no reasonable expectation of privacy, until the
moment of his arrest, in any of the rooms of the house -- least of
all, as in the present case, in the room in which he is actually
hiding.  See Pet. App. 42 (McAuliffe, J., dissenting).  To be sure,
once police officers have arrested a suspect, they may not continue to
search for him;  that search is obviously at an end.  But as this
Court has explained in another context, the fact that a privacy
interest has "been largely compromised" by a prior search "is highly
relevant to the reasonableness" of the subsequent search.  United
States v. Jacobsen, 466 U.S. 109, 121 (1984).  In light of the prior
invasions, a protective sweep is, at most, "only an incremental
intrusion on personal liberty." Michigan v. Summers, 452 U.S. 692, 703
(1981).  Accordingly, as Judge McAuliffe noted in dissent, "(t)he
question in this case is not the nature of exigent circumstances
required to justify the warrantless entry into a home, but rather the
exigency that will justify a limited additional intrusion following a
prior valid entry." Pet. App. 40.  Accord United States v. Hoyos, 868
F.2d 1131, 1142 (9th Cir. 1989) (Beezer, J., concurring in part and
dissenting in part) ("When a lawful arrest occurs inside a house, the
arrest itself reduces the owner's expectation of privacy:  further
exploration of the house under exigent circumstances affects privacy
as a matter of degree").  /5/

   What is more, the scope of a protective sweep is narrowly cabined.
Unlike a full-blown search incident to arrest, such as the one
rejected by this Court in Chimel v. California, 395 U.S. 752 (1969), a
protective sweep does not authorize officers "to open drawers" or "'to
physically move contents of * * * drawers from side to side.'" Id. at
754.  To the contrary, like the weapons search in Terry, a protective
sweep must be "strictly circumscribed by the exigencies which justify
its initiation.'" 392 U.S. at 25-26.  The only places that may be
searched are those in which a person might be hiding.  Moreover, the
search may last only as long as it takes to ensure that no one is
lurking elsewhere in the house.

   b. While the intrusiveness of a protective sweep is minimal, the
governmental interest at stake is of surpassing importance.  In
defining what is a reasonable search or seizure under the Fourth
Amendment, this Court has repeatedly identified officer safety as a
critical factor.  /6/ "American criminals have a long tradition of
armed violence," the Court has observed, "and every year in this
country many law enforcement officers are killed in the line of duty,
and thousands more are wounded." Terry, 392 U.S. at 23.  Thus, in
Terry, the Court refused to "blind (itself) to 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." Id. at 24.  /7/ Similarly, in extending Terry to
places within a suspect's reach, the Court in Michigan v. Long, supra,
explained that "suspects may injure police officers and others by
virtue of their access to weapons, even though they may not themselves
be armed." 463 U.S. at 1048.  Likewise, in Michigan v. Summers, supra,
holding that the police may briefly detain the occupant of a house
during the execution of a search warrant, the Court emphasized "the
interest in minimizing the risk of harm to the officers." 452 U.S. at
702.  And in Pennsylvania v. Mimms, supra, in which the Court upheld
as reasonable an order directing a person stopped by the police to get
out of his car, the Court found it "too plain for argument that the
State's proffered justification -- the safety of the officer -- is
both legitimate and weighty." 434 U.S. at 110;  cf. New York v.
Quarles, 467 U.S. 649, 657-658 (1984).

   The risk of injury to police is particularly great during the
execution of an arrest.  See New York v. Belton, 453 U.S. 454, 457
(1981);  Chimel v. California, 395 U.S. at 763.  Indeed, in many
respects the risk of injury may exceed the risk presented by a Terry
stop.  Whereas a stop may be "a severe, though brief, intrusion upon
cherished personal security," Terry, 392 U.S. at 24-25, an arrest is
typically prolonged, and decidedly more adversarial.  An arresting
officer must confront the arrestee, secure him in custody, and make
arrangements to transport him elsewhere.  Cf. United States v.
Robinson, 414 U.S. 218, 234-235 (1973);  Ybarra v. Illinois, 444 U.S.
85, 107 (1979) (Rehnquist, J., dissenting) ("the task performed by the
officers executing a search warrant is inherently more perilous than
is a momentary encounter on the street").  So, too, the arrest process
is apt to be highly charged, because it constitutes "the initial stage
of a criminal prosecution," Terry, 392 U.S. at 26, in which the
government and the arrestee will be squarely at odds.  And where the
arrest takes place in a house -- as opposed to a Terry stop, which
ordinarily occurs in a public setting -- the prospect of ambush from
unseen and unfamiliar areas is obviously much greater.  /8/

   c. In light of the competing interests, we believe that the
standard articulated in Terry and Long should apply to protective
sweeps as well.  Under that standard, a police officer may conduct a
protective sweep where he has "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 he is at risk.  Long, 463 U.S. at 1049-1050 (quoting
Terry, 392 U.S. at 21).  /9/ That standard has been endorsed by the
overwhelming majority of the federal courts of appeals, /10/ as well
as by the leading commentators.  /11/

   In applying the "reasonable belief" standard, the courts have
focused on a variety of factors.  Where, for example, the authorities
have specific information that other confederates remain at large, a
protective sweep is likely to be approved.  /12/ The same holds true
where the police have no such specific information, but suspect from
the nature of the crime or from other circumstances that other persons
may be present at the scene of the arrest.  /13/ In addition, a
protective sweep is typically found reasonable where the principal
arrest involves a shooting, or where weapons are known, or reasonably
believed, to be on the premises.  /14/ The violent nature of the
underlying crime (or the typical association of the underlying crime
with violence, as in the case of narcotics offenses) also bears on the
reasonableness of the sweep search.  /15/

   d. A strong argument can be made, we believe, that even the
"reasonable suspicion" standard is too restrictive, and that
protective sweeps should be permitted whenever police conduct an
arrest in a house and conclude that a quick sweep of the premises is
necessary to ensure their safety.  Such a principle, which would
uphold the sweep procedure even if a court later concluded that it was
not necessary, would have the advantages of creating a "bright-line"
rule for protective sweeps and avoiding the second-guessing of police
judgments about when to take protective measures during an arrest.
Compare New York v. Belton, 453 U.S. 454 (1981) (bright-line rule
permitting search of passenger compartment of automobile incident to
arrest of driver or passengers);  United States v. Robinson, 414 U.S.
218 (1973) (bright-line rule permitting search of arrestees incident
to all custodial arrests).

   While such a clear rule would have significant advantages in its
ease of administration and deference to on-the-spot police judgments,
we believe that on balance the somewhat more restrictive "reasonable
suspicion" rule better accommodates the competing interests.  Unlike
searches of the person incident to an arrest, protective sweeps have
not historically been justified merely by the fact of an arrest.
Compare United States v. Robinson, 414 U.S. at 230-235.  In addition,
the home has traditionally been the object of the highest level of
Fourth Amendment protection.  There is therefore good reason to
require a case-by-case justification for an intrusion within the home,
even where the intrusion, as in the case of a protective sweep,
constitutes only a marginal extension of an already justified entry.
/16/ Finally, the need for deference to on-the-spot judgments by the
police can be accommodated under the reasonable suspicion standard, as
long as that standard is applied liberally, with sensitivity to
legitimate police concerns about safety and the need to resolve doubts
in favor of actions taken to ensure security.

   B. The "Protective Sweep" Of Respondent's Basement Was Lawful

   When they arrested respondent in the present case, the police had a
reasonable belief that they were at risk.  They were therefore
entitled to perform a protective sweep of the premises.  Several
factors, all of which were elicited during the initial suppression
hearing, support that conclusion.

   When he entered respondent's basement, Detective Frolich knew that
arrest warrants had been issued for respondent and his accomplice,
Lloyd Allen, in connection with an armed robbery committed only 48
hours earlier.  The prospect that Allen might be present in the house,
armed and prepared to interfere with the arrest, was entirely
plausible.  Moreover, Allen was not the only person who may have
surprised the officers;  respondent's house had several levels, and
more than one person could easily have lived in it.  /17/ In fact, the
testimony revealed that prior to the arrest, a police secretary had
called the house, speaking first with an unidentified woman and then
with respondent.  The police did not locate the unidentified woman
prior to respondent's arrest, and she could easily have been hiding in
the basement or elsewhere in the house at the time of the arrest.
/18/

   The court of appeals discounted most of those factors, but its
reasons for doing so are not persuasive.  For example, although the
court acknowledged that respondent's accomplice was still on the loose
at the time of the arrest, it found no "serious and demonstrable
likelihood that Allen was in the dwelling at the time * * * or had
ever been or even visited there." Pet. App. 35.  The police need not,
however, await "a serious and demonstrable likelihood" of danger
before taking steps to protect against it.  See Terry, 392 U.S. at 24.
 The court also recognized that a gun had been used during the
robbery, but it refused to consider that fact, because the gun had not
specifically been "mentioned at the (initial) suppression hearing."
Pet. App. 35.  Again, that parses the evidence too finely.  Although
the officers did not state in so many words that respondent had used a
weapon during the robbery, Detective Frolich explained that arrest
warrants had been issued for respondent and his accomplice, charging
them with armed robbery.  Tr. 1-18.  Finally, while the court found no
reason for the police to fear that "other confederates" might be in
the house, it did not consider the fact that the woman who answered
the police secretary's phone call had not yet been accounted for at
the time of respondent's arrest.

   The court of appeals' treatment of the evidence was clearly
affected by the probable cause standard that it believed to be
applicable to protective sweeps.  The rule in Terry, which we believe
to be applicable in this context, does not permit the kind of
second-guessing of reasonable inferences of danger that the court of
appeals engaged in here.  Police officers in these cases must make
"quick ad hoc judgment(s)" (United States v. Robinson, 414 U.S. at
235), and courts "must be careful not to use hindsight in limiting the
ability of police officers to protect themselves as they carry out
missions which routinely incorporate danger" (United States v. Coates,
495 F.2d 160, 165 (D.C. Cir. 1974)).  Because the police had a
reasonable basis for believing themselves to be at risk at the time
they arrested respondent, they were entitled under the Fourth
Amendment to perform a protective sweep of the basement.  The plain
view seizure of the jogging outfit was therefore entirely lawful.  See
Michigan v. Long, 463 U.S. at 1050;  Coolidge v. New Hampshire, 403
U.S. 443, 465 (1971);  Harris v. United States, 390 U.S. 234, 236
(1968).

                              CONCLUSION

   The judgment of the Court of Appeals of Maryland should be
   reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   KATHLEEN A. FELTON

      Attorney

   JULY 1989

   /1/ During the trial proceedings, the prosecutor moved to reopen
the suppression hearing and thereafter elicited additional testimony
bearing on the seizure of the jogging outfit.  Tr. 2-23 to 2-32.
Testifying outside the presence of the jury, Detective Frolich
explained that at the time he entered the basement he was armed not
only with an arrest warrant for respondent, but also with an arrest
warrant for his accomplice, Lloyd Allen.  Frolich further testified
that he knew at the time that respondent and Allen had once before
been arrested for jointly committing armed robbery and that they had
been "running together" at the time of the February 5, 1986 arrest.
Finally, Detective Frolich stated that a handgun had reportedly been
involved in the robbery.  Pet. App. 7 n.2;  Tr. 2-23 to 2-27.  The
trial court adhered to its decision denying the suppression motion.
Tr. 2-31 to 2-32.  The Court of Special Appeals agreed with the trial
court on the merits, but it found that there was no basis for
reopening the hearing and it therefore refused to consider the
additional testimony.  Pet. App. 52-58.  The court of appeals took the
same view with respect to the reopening, holding that "any evidence
introduced at the reopened hearing will not be considered on appeal."
Id. at 7-8 n.2.

   /2/ The Court of Special Appeals also upheld the trial court's
decision to call respondent's cousin as the court's witness.  Pet.
App. 76-80.  The petition does not present that issue.

   /3/ See, e.g., Skinner v. Railway Labor Executives' Ass'n, 109 S.
Ct. at 1416 ("the delay necessary to procure a warrant * * * may
result in the destruction of valuable evidence");  National Treasury
Employees Union v. von Raab, 109 S. Ct. 1384, 1391 (1989) (the mission
of the Customs Service "would be compromised if it were required to
seek search warrants in connection with routine, yet sensitive,
employment decisions");  Griffin v. Wisconsin, 483 U.S. 868, 876
(1987) ("(a) warrant requirement would interfere to an appreciable
degree with the probation system, setting up a magistrate rather than
the probation officer as the judge of how close a supervision the
probationer requires");  New Jersey v. T.L.O., 469 U.S. at 340 (a
warrant requirement "would unduly interfere with the maintenance of
the swift and informal disciplinary procedures needed in the
schools");  O'Connor v. Ortega, 480 U.S. 709, 722 (1987) (plurality
opinion) ("requiring an employer to obtain a warrant whenever the
employer wished to enter an employee's office, desk, or file cabinets
for a work-related purpose would seriously disrupt the routine conduct
of business and would be unduly burdensome").

   /4/ See, e.g., Griffin v. Wisconsin, 483 U.S. at 878 (a probable
cause standard "would reduce the deterrent effect of the supervisory
arrangement");  O'Connor v. Ortega, 480 U.S. at 724 (plurality
opinion) ("(t)he delay in correcting the employee misconduct caused by
the need for probable cause rather than reasonable suspicion will be
translated into tangible and often irreparable damage to the agency's
work, and ultimately to the public interest");  New Jersey v. T.L.O.,
469 U.S. at 340-342.

   /5/ See Michigan v. Summers, 452 U.S. at 701-703 (in light of the
warrant to search the premises, the brief detention of the occupant of
a house was only marginally intrusive);  Pennsylvania v. Mimms, 434
U.S. 106, 109 (1977) (in light of lawful decision to stop a driver,
the Fourth Amendment "inquiry must therefore focus not on the
intrusion resulting from the request to stop the vehicle * * * but on
the incremental intrusion resulting from the request to get out of the
car once the vehicle was lawfully stopped").  Cf. United States v.
Jacobsen, 466 U.S. 109, 120-121 (1984) (in light of the prior opening
of a package by private employees, the subsequent seizure by federal
officials was not unreasonable).

   /6/ The risk of violence to police officers is not the only
governmental interest that may justify a protective sweep following a
custodial arrest.  For example, several courts have held that police
may make a protective sweep of the premises to ensure that potential
evidence is not lost or destroyed.  See, e.g., United States v.
Vasquez, 638 F.2d 507 (2d Cir. 1980), cert. denied, 454 U.S. 975
(1981).  See also Jackson v. United States, 479 U.S. 910 (1986)
(White, J., dissenting from denial of certiorari).  In the present
case, however, as in most cases, it is the risk to the arresting
officers that justifies the protective sweep.

   /7/ The Court held that "(w)hen an officer is justified in
believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the
officer or to others, it would appear to be clearly unreasonable to
deny the officer the power to take necessary measures to determine
whether the person is in fact carrying a weapon and neutralize the
threat of physical harm." 392 U.S. at 24.

   /8/ In 1981, for example, 19% of all assaults on law enforcement
officers occurred while the officers were attempting to effect
arrests.  FBI, 1981 Uniform Crime Reports 307.

   /9/ The Court's decision in Chimel v. California, 395 U.S. 752
(1969), does not require a different standard.  In Chimel, the Court,
overruling certain of its prior decisions, held that police officers
who have arrested a suspect in his home may not, as an incident to
that arrest, conduct a search of the entire premises.  The police
officers in Chimel, however, made a thoroughgoing search of the
premises (see id. at 754), and there was no suggestion that the search
was, or could have been, justified by a reasonable belief that the
officers were at risk.  What is more, Chimel recognizes the interest
in police safety, in that it expressly authorizes arresting officers
to search "the area into which an arrestee might reach to grab a
weapon." Id. at 763.

   The Court's more recent decision in Arizona v. Hicks, 480 U.S. 321
(1987), is likewise not inconsistent with the rule we have urged.  In
Hicks, the Court held that the police could not examine concealed
parts of a stereo system they had found in plain view during a search,
conducted on exigent circumstances, following a shooting incident.  In
Hicks, however, the exigent circumstances justifying the search did
not comprehend a search of the stereo -- unlike the execution of a
lawful arrest, which authorizes the police to look everywhere the
suspect may be found.  Moreover, the search of the stereo in Hicks was
based on ordinary law enforcement interests and not, as here, on an
immediate concern for officer safety.

   /10/ See, e.g., United States v. Kaylor, No. 88-5393 (8th Cir. June
8, 1989), slip op. 11;  United States v. Castillo, 866 F.2d 1071, 1079
(9th Cir. 1988);  United States v. Caraza, 843 F.2d 432, 435-436 (11th
Cir. 1988);  United States v. Escobar, 805 F.2d 68, 71 (2d Cir. 1986);
 United States v. Bernard, 757 F.2d 1439, 1443 (4th Cir. 1985);
United States v. Riccio, 726 F.2d 638, 641-642 (10th Cir. 1984);
United States v. Jones, 696 F.2d 479, 487 (7th Cir. 1982), cert.
denied, 462 U.S. 1106 (1983);  United States v. Hatcher, 680 F.2d 438,
444 (6th Cir. 1982).  See also United States v. Gardner, 627 F.2d 906,
910 (9th Cir. 1980) (Kennedy, J.) (to justify a protective sweep "(i)n
this circuit, the Government must be able to 'point to specific and
articulable facts which, taken together with rational inferences from
those facts, (would) reasonably warrant (the warrantless)
intrusion'").  The Fifth Circuit in United States v. Kolodziej, 706
F.2d 590, 597 (1983), and the First Circuit in United States v. Gerry,
845 F.2d 34, 37 (1988), have stated that there must be a showing of
probable cause.  In the former case, however, it is not clear that the
protective sweep could have been upheld even under the Terry standard
(see 706 F.2d at 597), and in the latter case the court of appeals
also described the governing standard as one of "reasonable belief"
(845 F.2d at 37).

   /11/ See W. LaFave, Search and Seizure Section 6.4(c), at 647 (2d
ed. 1987);  Joseph, The Protective Sweep Doctrine:  Protecting
Arresting Officers From Attack By Persons Other Than The Arrestee, 33
Cath. U.L. Rev. 95, 144-145 (1983);  Kelder & Statman, The Protective
Sweep Doctrine:  Recurrent Questions Regarding The Propriety Of
Searches Conducted Contemporaneously With An Arrest On Or Near Private
Premises, 30 Syracuse L. Rev. 973, 1020-1022 (1979).

   /12/ See, e.g., United States v. Hoyos, 868 F.2d 1131, 1138 (9th
Cir. 1989);  United States v. Valles-Valencia, 811 F.2d 1232, 1236,
modified on other grounds, 823 F.2d 381 (9th Cir. 1987);  United
States v. Bernard, 757 F.2d at 1443;  United States v. Reed, 733 F.2d
492, 504 (8th Cir. 1984);  United States v. Irizarry, 673 F.2d 554,
558 (1st Cir. 1982);  United States v. Manley, 632 F.2d 978, 986-987
(2d Cir. 1980), cert. denied, 449 U.S. 1112 (1981).

   /13/ See, e.g., United States v. Escobar, 805 F.2d at 71;  United
States v. Jackson, 778 F.2d 933, 936-937 (2d Cir. 1985), cert. denied,
479 U.S. 910 (1986);  United States v. Tabor, 722 F.2d 596, 598 (10th
Cir. 1983);  United States v. Baker, 577 F.2d 1147, 1152 (4th Cir.),
cert. denied, 439 U.S. 850 (1978).

   /14/ See, e.g., United States v. Kaylor, slip op. 12;  United
States v. Caraza, 843 F.2d at 435;  United States v. Valles-Valencia,
811 F.2d at 1236;  United States v. Standridge, 810 F.2d 1034,
1037-1038 (11th Cir.), cert. denied, 481 U.S. 1072 (1987);  United
States v. Riccio, 726 F.2d at 642;  United States v. Irizarry, 673
F.2d at 558;  United States v. Bruton, 647 F.2d 818, 822-823 (8th
Cir.), cert. denied, 454 U.S. 868 (1981);  United States v. Gardner,
627 F.2d at 909-911.

   /15/ See, e.g., United States v. Hoyos, 868 F.2d at 1138;  United
States v. Castillo, 866 F.2d at 1080-1081;  United States v.
Marszalkowski, 669 F.2d 655, 665 (11th Cir.), cert. denied, 459 U.S.
906 (1982).

   /16/ The "bright-line" rule would apparently permit the police to
conduct a full sweep of an arrestee's home even if there was nothing
about the crime that in any way suggested the possibility of violence,
and even if the suspect were arrested at the threshold of his home and
immediately removed.  Because such results do not appear to satisfy
the Fourth Amendment's requirement of reasonableness, we believe that
a more case-specific rule of scrutiny is preferable.

   /17/ See United States v. Caraza, 843 F.2d at 436 ("Because the
residence was a two-story structure, the arresting officers could not
be certain whether others were in the house who might either pose a
threat to the officers or need assistance.").

   /18/ The court of appeals noted in passing (Pet. App. 14-15 n.4)
that according to his testimony Officer Rozar "was not concerned about
any danger" at the time that he decided to "freeze the basement." That
suggestion misconstrues the record.  Officer Rozar made that statement
in explaining why he had not searched the area around respondent;  he
was not asked, and did not address, the question whether there was any
risk of interference from someone else in the house.  In any event, it
does not matter, for purposes of the Terry standard, that a particular
officer may lack a subjective apprehension of injury.  "(I)n making
th(e) assessment" required under Terry, "it is imperative that the
facts be judged against an objective standard:  would the facts
available to the officer at the moment of the seizure or the search
'warrant a man of reasonable caution in the belief' that the action
taken was appropriate." 392 U.S. at 21-22.  See also Graham v. Connor,
109 S. Ct. at 1872.