Maryland v. Buie/Dissent Brennan

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.