# Maryland v. Buie/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens Kennedy
* Dissenting Opinion Brennan
* Wikipedia article
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today the Court for the first time extends Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), into the home, dispensing with the Fourth Amendment's general requirements of a warrant and probable cause and carving a "reasonable suspicion" exception for protective sweeps in private dwellings. In Terry, supra, the Court held that a police officer may briefly detain a suspect based on a reasonable suspicion of criminal activity and may conduct a limited "frisk" of the suspect for concealed weapons in order to protect herself from personal danger. The Court deemed such a frisk "reasonable" under the Fourth Amendment in light of the special "need for law enforcement officers to protect themselves and other prospective victims of violence" during investigative detentions, id., at 24, 88 S.Ct., at 1881, and the "brief, though far from inconsiderable, intrusion upon the sanctity of the person." Id., at 26, 88 S.Ct., at 1882.
Terry and its early progeny "permit[ted] only brief investigative stops and extremely limited searches based on reasonable suspicion." United States v. Place, 462 U.S. 696, 714, 103 S.Ct. 2637, 2648, 77 L.Ed.2d 110 (1983) (BRENNAN, J., concurring in result). But this Court more recently has applied the rationale underlying Terry to a wide variety of more intrusive searches and seizures, prompting my continued criticism of the " 'emerging tendency on the part of the Court to convert the Terry decision' " from a narrow exception into one that " 'swallow[s] the general rule that [searches] are "reasonable" only if based on probable cause.' " Place, supra, at 719, 103 S.Ct., at 2651 (BRENNAN, J., concurring in result) (citations omitted).
The Court today holds that Terry's "reasonable suspicion" standard "strikes the proper balance between officer safety and citizen privacy" for protective sweeps in private dwellings. Ante, at 335, n. 2. I agree with the majority that officers executing an arrest warrant within a private dwelling have an interest in protecting themselves against potential ambush by third parties, see ante, at 333, but the majority offers no support for its assumption that the danger of ambush during planned home arrests approaches the danger of unavoidable "on-the-beat" confrontations in "the myriad daily situations in which policemen and citizens confront each other on the street." Terry, supra, 392 U.S., at 12, 88 S.Ct., at 1875. In any event, the Court's implicit judgment that a protective sweep constitutes a "minimally intrusive" search akin to that involved in Terry markedly undervalues the nature and scope of the privacy interests involved.
While the Fourth Amendment protects a person's privacy interests in a variety of settings, "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, Eastern District of Michigan, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). The Court discounts the nature of the intrusion because it believes that the scope of the intrusion is limited. The Court explains that a protective sweep's scope is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding," ante, at 327, and confined in duration to a period "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Ante, at 335-336. But these spatial and temporal restrictions are not particularly limiting. A protective sweep would bring within police purview virtually all personal possessions within the house not hidden from view in a small enclosed space. Police officers searching for potential ambushers might enter every room including basements and attics; open up closets, lockers, chests, wardrobes, and cars; and peer under beds and behind furniture. The officers will view letters, documents, and personal effects that are on tables or desks or are visible inside open drawers; books, records, tapes, and pictures on shelves; and clothing, medicines, toiletries and other paraphernalia not carefully stored in dresser drawers or bathroom cupboards. While perhaps not a "full-blown" or "top-to-bottom" search, ante, at 336, a protective sweep is much closer to it than to a "limited patdown for weapons" or a " 'frisk' of an automobile." Ante, at 332. Because the nature and scope of the intrusion sanctioned here are far greater than those upheld in Terry and Long, the Court's conclusion that "[t]he ingredients to apply the balance struck in Terry and Long are present in this case," ibid., is unwarranted. The "ingredient" of a minimally intrusive search is absent, and the Court's holding today therefore unpalatably deviates from Terry and its progeny.
In light of the special sanctity of a private residence and the highly intrusive nature of a protective sweep, I firmly believe that police officers must have probable cause to fear that their personal safety is threatened by a hidden confederate of an arrestee before they may sweep through the entire home. Given the state-court determination that the officers searching Buie's home lacked probable cause to perceive such a danger and therefore were not lawfully present in the basement, I would affirm the state court's decision to suppress the incriminating evidence. I respectfully dissent.

## Notes

* ↑ The Court has recently relied on Terry to relax the warrant and probable-cause requirements for both searches of places, e.g., New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (search of car interior); Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (same); and seizures of personal effects, e.g., New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (search of student's purse); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (seizure of luggage).
* ↑ Individual police officers necessarily initiate street encounters without advance planning "for a wide variety of purposes." Terry v. Ohio, 392 U.S., at 13, 88 S.Ct., at 1875. But officers choosing to execute an arrest warrant in the suspect's house may minimize any risk of ambush by, for example, a show of force; in this case, at least six armed officers secured the premises. And, of course, officers could select a safer venue for making their arrest.
* ↑ Here the officers' arrest warrant for Buie and their probable cause to believe he was present in the house authorized their initial entry. But, as the majority concedes, "[o]nce he was found . . . the search for him was over," and "Buie had an expectation of privacy in those remaining areas of his house." Ante, at 333. The fact that some areas were necessarily exposed to the police during Buie's arrest thus does not diminish his privacy interest in the remaining rooms. See Chimel v. California, 395 U.S. 752, 767, n. 12, 89 S.Ct. 2034, 2042 n. 12, 23 L.Ed.2d 685 (1969) ("[W]e can see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require").
* ↑ The protective sweep in this case may have exceeded the permissible temporal scope defined by the Court. The Court of Appeals of Maryland expressly noted that "at the time of the warrantless search, Buie was safely outside the house, handcuffed and unarmed." 314 Md. 151, 166, 550 A.2d 79, 86 (1988). On remand, therefore, the state court need not decide whether the "reasonable suspicion" standard is satisfied in this case should it determine that the sweep of the basement took place after the police had sufficient time to "complete the arrest and depart the premises." Ante, at 336.
* ↑ Indeed, a protective sweep is sufficiently broad in scope that today's ruling might encourage police officers to execute arrest warrants in suspects' homes so as to take advantage of the opportunity to peruse the premises for incriminating evidence left in "plain view." This incentive runs directly counter to our central tenet that "in [no setting] is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home-a zone that finds its roots in clear and specific constitutional terms." Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639 (1980).
* ↑ The Court's decision also to expand the "search incident to arrest" exception previously recognized in Chimel v. California, supra, allowing police officers without any requisite level of suspicion to look into "closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched," ante, at 334, is equally disquieting. Chimel established that police officers may presume as a matter of law, without need for factual support in a particular case, that arrestees might take advantage of weapons or destroy evidence in the area "within [their] immediate control"; therefore, a protective search of that area is per se reasonable under the Fourth Amendment. Chimel, supra, 395 U.S., at 763, 89 S.Ct., at 2040. I find much less plausible the Court's implicit assumption today that arrestees are likely to sprinkle hidden allies throughout the rooms in which they might be arrested. Hence there is no comparable justification for permitting arresting officers to presume as a matter of law that they are threatened by ambush from "immediately adjoining" spaces.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse