Record and brief — Maryland v. Buie

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No. 88-1369-CSY

GRANTED

Status:

Docketed:

February 16,

198

Title: Maryland, Petitioner

Vv.

Jerome Edward Buie

Court: Court of Appeals of Maryland

Counsel for petitioner: Bair,Gary E.

Counsel for respondent: Henderson,Dennis, Kopolow,John L.

Note

Proceedings and Orders

1 Jan 17 1989 G Application (A88-570) to extend the time to file a petition

Jan

Feb

Mar

Apr

May

1989

for a writ of certiorari from January 17, 1989 to

February 16, 1989, submitted to The Chief Justice.

Application (A88-570) granted by the Chief Justice

extending the time to file until February 16, 1989.

G Petition for writ of certiorari filed.

DISTRIBUTED. April 14, 1989

Response requested -- CJ, BRW. (Due May 12, 1989)

Brief of respondent in opposition filed.

Motion of respondent for leave to proceed in forma

pauperis filed.

REDISTRIBUTED. June 1, 1989

Motion of respondent for leave to proceed in forma

pauperis GRANTED.

Petition GRANTED.

SEAEAAAAAAAAAAEAAAEEEEEREREEREEAREREEEEAEAEAAEAEKEKEAEKRKAEARARHRRAEKKREE

Record filed.

Certified copy of original record received.

Brief amici curiae of Americans for Effective Law

Enforcement, et al. filed.

Joint appendix filed.

Brief of petitioner Maryland filed.

Brief amicus curiae of United States filed.

Brief amicus curiae of Appellate Comm. of CA District

Attorneys Assn. filed.

Motion of the Solicitor General for leave to participate

in oral argument as amicus curiae and for divided

argument filed.

Order extending time to file brief of respondent on the

merits until September 2, 1989.

Brief of respondent filed.

Motion of the Solicitor General for leave to participate

in oral argument as amicus curiae and for divided

argument GRANTED.

SET FOR ARGUMENT MONDAY, DECEMBER 4, 1989. (4TH CASE)

CIRCULATED.

X Reply brief of petitioner Maryland filed.

ARGUED.

PETITION

FOR WRIT OF

CERTIORARI

eorae

| 88-1369 | CFILED

No. | toned ell

In THE CLK

Supreme Court of the United States

Octoser Term, 1988

— STATE OF MARYLAND,

Petitioner,

Vv.

JEROME EDWARD BUIE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

J. JosepH CuRRAN, JR.,

Attorney General of Maryland,

Gary E. Bair,*

Assistant Attorney General,

Seven North Calvert Street,

Munsey Building — Fourth Floor,

Baltimore, Maryland 21202,

Telephone (301) 576-6422,

Counsel for Petitioner.

Of Counsel:

Mary E.LLen Barpera,

Ann N. Bosse,

Assistant Attorneys General.

*Counsel of Record

The Daily Record Co., baltimore, MD 21202

QUESTION PRESENTED

Where police possess arrest

warrants for two armed robbery suspects,

4S it reasonable under the Fourth

Amendment for the officers, after

arresting one suspect in his home, to

make a cursory check of the premises to

determine whether the accomplice or

other persons are present?

PARTIES

The caption contains the names of

all the parties below.

TABLE OF CONTENTS

OPINIONS Di -h6eeececec xe ff se © @® @& © l

STATEMENT OF JURISDICTION.......+2+++2

CONSTITUTIONAL PROVISION INVOLVED....3

STATEMENT Dts «a ceeeecececeoos

REASONS FOR GRANTING THE WRIT.......10

I. Previously Recognized

Rationales Justify Sweep

ee 8 |

II. The Federal Courts of

Appeals Are In

CC EEE

III. A Uniform Standard Is

NECOESSALY.wccccccesscseecsecelhld

CONCLUSION... cecececcecccccenccceesel®

TABLE OF AUTHORITIES

Page

Cases

15l,

ie v. State, 314 Md. -

a? A.36 79 (19GB) or-cecccccccceds

. App. 562,

Buie v. State, 72 Md ae

"531 A.2d 1290 (1987)......eee-

himel v. California, id

“ 395 B.B. FES (ASSP) cccccccccccccsecsa

naway v. New York, .

= a8. 200 (1979) cccccecccccsece 17

ichigan v. Long, 7

ease 8. 1932 (19B3) cccccecceces 12

ess U.S. 454 (19BL) wc cccccccccehas 1?

Terry v. Ohio, 392 U.S. 1 (1968)....12

ited States v. Baker,

ear F.2d 1147 (4th Cir.),

t. denied

KL U.S. B50 (1978). ccecececcececel

States v. Caraza,

ee ete 432 (llth Cir. 1988) -

(per CUELOM) ccccccccccccccccccces

ited States v. Castillo,

ayy F.2d 1379 (9th Cir. 1988).....15

United States Vv. Gardner,

627 F.2d 906 (9th Cir. 1980)......15

United States y. Gerry, 845 P.24 34

(lst Cir. BOOB) oo ccccccccccsccccccké

United States Vv. Jackson,

107 S.Ct. 308 (1986)

(White, J., dissenting from

denial of COCCLOFELL) oo ce cccccccccll

United States y. Kolodziej,

706 P.2d 590 (Sth Cir, 1983)

United States Vv. Robinson,

414 U.S. 218 02973) cccccccccccccech?

SccceelS

Constitutional] Provisions

United States Constitution,

Fourth Amendment s+eeeeee3, Dassim

Statutes

28 U.S.C. §1257(a)

~S@Ceeeeeonce *- eee @ «@ oa

Rules

Supreme Court Rule 17.1(b)(c)

Seeccceed

~iii-

Miscellaneous

LaFave, "Case-By-Case Adjudication"

Versus "Standardized Procedures":

The Robinson Dilemma,

1974 S.Ct.Rev.

L224 ccccccccecs

ery

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

STATE OF MARYLAND,

Petitioner,

Vv.

JEROME EDWARD BUIE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

The petitioner, the State of

Maryland, respectfully requests that a

writ of certiorari issue to review the

judgment and opinion of the Court of

Appeals of Maryland.

OPINIONS BELOW

The reported opinion of the Court

of Appeals of Maryland, Buie v. State, invoked pursuant to 28 U.S.C. §1257(a)

314 Md. 151, 550 A.2d 79 (1988), and Rules of this Court, Rule 17.1(b)

reversing Respondent's conviction, is and (c).

reproduced in the Appendix (Apx. 1- 45). CONSTITUTIONAL PROVISION INVOLVED

The reported opinion of the Court United States Constitution,

of Special Appeals of Maryland, Buie v. Amendment IV:

The right of the people

State, 72 Md. App. 562, 531 A.2d 1290 ee he eeeece ia tris

persons, houses, papers, and

effects, against unreasonable .

searches and seizures, shall

not be violated, and no

(1987), affirming Respondent's

conviction is reproduced in the Appendix

Warrants shall issue, but

(Apx. 46-81). upon probable cause,

STATEMENT OF JURISDICTION supported by Oath or

affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized.

The opinion of the Court of Appeals

of Maryland reversing Respondent's

conviction was filed on November 28, STATEMENT OF THE CASE

1988. On January 18, 1989, Chief On February 3, 1986, Detective

Justice Rehnquist ordered that the time Joseph Prolich of the Prince George's

for filing the petition for writ of County Police Department obtained a

certiorari be extended to and including warrant for the arrest of Respondent

February 16, 1989.

Jurisdiction of this Court is

Jerome Edward Buie. (E. 9).1 Buie and

Lloyd Allen, for whom the police also

obtained a warrant, were suspected of

having robbed, at gunpoint, a

Godfather's Pizza restaurant on February

3, 1986. (E. 9).

Two days later, on February 5,

1986, Buie was arrested in his home and

a red running suit was seized. (E. 10-

11). A victim of the robbery had said

that one of the robbers wore a red

running suit. (E. 11).

A pre-trial hearing was held in the

Circuit Court for Prince George's

County, Maryland, on December 2, 1986,

1 In the Court of Appeals of Maryland,

the transcript of the hearing on Buie's

motion to suppress was included in the

appendix to Buie's brief. The

references to the record herein are

based upon the page designations used in

that appendix.

pursuant to Buie's motion to suppress

the red running suit. Detective Frolich

and another member of the Prince

George's County Police Department,

Corporal James Rozar, were the only

witnesses. Both were called by the

State, and their combined testimony

disclosed the following.

Before the arrest warrant was

executed, a secretary from Detective

Frolich's office telephoned Buie's

residence to determine if Buie was

there. (E. 16). A woman answered, and

the secretary spoke with Buie. (E.

16). Frolich and five or six other

officers, including Corporal Rozar, then

went to Buie's home. (E. 12). It was

mid-afternoon; there were one or two

young girls on the steps outside of the

house. (E. 5-6, 15).

Rozar entered the house and spoke

with Sergeant Dunn, who was then on his

way upstairs. (E. 3). Buie had not yet

been located. Dunn told Rozar that he

had secured the first floor but not the

basement. (E. 3). Dunn also said that

he had “yelled down into the basement,”

but had not received a response. (E.

3). Rozar agreed to "freeze" the

basement, so that "if there were someone

in the basement they couldn't come up

behind us." (E. 3-4).

Rozar pointed his service revolver

down the basement stairs and yelled

twice for anyone there to ascend. (E.

4). Rozar eventually heard a voice ask,

“who is it?" (E. 4). Several times

Rozar identified himself as a policeman

and said "show me your hands." (E.

4).

Rozar finally saw a pair of hands

come around the bottom of the stair-

well. (E. 4). Rozar then instructed

the person to come forward to where he

could be seen. (E. 4). When the

person, who happened to be Buie, did so,

Rozar ordered him to ascend the

Stairs. (E. 4). When Buie stopped to

pick up a pair of sneakers, Rozar told

him to leave the sneakers alone. (E.

4). Buie then came up the stairs,

whereupon Rozar arrested him. (E. 4).

After Rozar handcuffed Buie, *

2 Rozar was asked if, upon arresting

Buie, he had searched Buie and the area

at the top of stairs immediately

Surrounding Buie. Rozar explained that

such a search was unnecessary because he

was not then “worried about there being

any danger." (E. 8). From this

testimony, the majority of the Court of

Appeals of Maryland concluded that Rozar

believed that no danger existed from

anywhere in the house. (Apx. 5). I€£

relevant, a fair reading of Rozar's

Cont'd

-7-

Frolich descended the stairs “in case

there was someone else in the base-

ment." (E. 14). In the basement,

Frolich saw the red running suit laying

on a stack of clothing and seized it.

(E. ll, 14).

Seeking suppression of the running

suit, Buie claimed that once the police

arrested him, they had no authority to

search his basement without a search

warrant. (E. 16-19). The trial court

denied Buie's motion to suppress, saying

(E. 20):

I think they had a right to

search him and I think they

had a right to seize, based

on the facts of this case.

The man comes out from a

basement, the police don't

know how many other people

are down there. He is

charged with a serious

testimony suggests that he simply

believed that Buie no longer posed any

danger.

offense.

I think the police acted

reasonably in this case and

if they had gone back to get

a warrant, that wouldn't have

been there. 5

The State introduced the running

suit at Buie's trial. On December 3,

1986, a jury found him guilty of robbery

with a deadly weapon and use of a

handgun in the commission of a felony.

On December 30, 1986, Buie was sentenced

to a total of 35 years in prison.

The Court of Special Appeals of

Maryland affirmed the judgment of the

trial court. The Court of Appeals of

Maryland, in a four to three decision,

reversed Buie's conviction, finding that

the sweep search of Buie's basement and

the seizure of the red running suit

“were unconstitutional because’ they

violated rights established by the

fourth amendment to the United States

Constitution." (Apx. 2).

REASONS FOR GRANTING THE WRIT

Both the trial court and the

intermediate appellate court upheld, as

reasonable, the cursory check of Buie's

basement for third persons immediately

after Buie's arrest. By a sharply

divided vote, the Court of Appeals of

Maryland concluded that such a brief,

superficial search cannot take place

without full probable cause to believe

that third persons are on the

premises. Finding probable cause

lacking, the court held that the cursory

search violated the Fourth Amendment.

This Court has yet to rule on the

propriety of sweep searches for third

persons incident to in-home arrests.

With this case, the Court can employ

-10-

rationales already approved in its prior

cases to define the lawful limits of

police conduct in these frequently

occurring and inherently volatile

situations. In so doing, this Court

necessarily will resolve the conflict

that exists among the federal courts of

appeals.

I. Previously Recognized

Rationales Just “Swee

Searches.

At least two rationales exist for

permitting the type of search at

issue. One rationale is officer safety.

A second rationale is law enforcement,

which can include preservation of

evidence and execution of open arrest

warrants. Previously, this Court has

employed these same rationales to permit

full warrantless searches for weapons

and evidence within a well-defined space

-ll-

surrounding the arrestee. See Chimel v.

California, 395 U.S. 752 (1969); United

States v. Robinson, 414 U.S. 218 (1973);

New York v. Belton, 453 U.S. 454

(1981).

Here, although the rationales for

the intrusion remain the same, _ the

search is for persons -- not evidence.

Accordingly, the intrusion is not a

general, exploratory rummaging, but is

akin to the limited, superficial search

allowed in cases such as Terry v. Ohio,

392 U.S. 1 (1968) (frisk of person), and

Michigan v. Long, 463 U.S. 1032 (1983)

(frisk of automobile).

Consonant with the Fourth Amendment

and consistent with this Court's

pronouncements in Chimel, Robinson,

Belton, Terry, and Long, the cursory

check at issue is eminently

-12-

reasonable. It merely allows police

officers, who have lawfully crossed the

threshold of the home and arrested the

homeowner, to walk quickly through the

house to look for persons who could

interfere with the arrest or destroy

evidence, or who are themselves subject

to arrest. Of course, the brief pass-

through would only encompass’ those

places where a person could hide.

II. The Federal Courts of

Appeals Are In Conflict.

The sharply divergent positions

taken by the seven members of Maryland's

highest court reflect the conflicting

approaches of federal jurisdictions that

have addressed the issue of cursory

sweep searches. The conflict is

substantial.

Like the dissenters in this case,

some courts consider the totality of the

-13-

circumstances, balancing the exigencies

of the situation against the limited

nature of the intrusion. See, e.g.,

United States v. Baker, 577 F.2d 1147,

1152 (4th Cir.), cert. denied, 439 U.S.

850 (1978).

Other courts require a specific

level of objective justification before

validating a sweep search, but disagree

on the necessary quantum and focus of

suspicion. Some courts, like the

majority in this case, apply a probable

cause standard. The First Circuit, for

example, requires both exigency and

probable to believe that evidence is on

the premises. United States v. Gerry,

845 F.2d 34, 36-37 & n.l (lst Cir.

1988). The Fifth Circuit also requires

probable cause, but focuses upon the

threat to officer safety. United States

-14-

v. Kolodziej, 706 F.2d 590, 597 (Sth

Cir. 1983).

In stark contrast, the Ninth

Circuit imposes a requirement’ that

officers harbor only an articulable

suspicion that there are third persons

on the premises who pose a threat to

officer safety. United States v.

Castillo, 844 F.2d 1379, 1386 (9th Cir.

1988). See also United States v.

Gardner, 627 F.2d 906, 909-10 (9th Cir.

1980). And, the Eleventh Circuit speaks

3 The Gardner decision, authored by now

Justice Kennedy, also holds that police

need only have an articulable suspicion

that their safety is threatened. In a

footnote to the opinion, the court

observed that "(t]he circumstances under

which a protective search of a residence

may be conducted are not yet completely

settled," and that "the different

circuits appear to apply the standards

for evaluating the constitutionality of

such searches in somewhat different

ways." 627 F.2d at 910 n.3.

-15-

in terms of reasonable belief, saying a

reasonable belief of danger exists if

there is uncertainty as to whether third

persons might be present who pose a

threat to the officers or who need

assistance. United States v. Caraza,

843 F.2d 432, 435 (llth Cir. 1988) (per

curiam).

These conflicts make this case

appropriate for the Court's consider-

ation. The Court can provide much

needed guidance to lower courts, as well

as law enforcement officials, on an

“important and recurring issue of Fourth

Amendment law." United States Vv.

Jackson, 107 S.Ct. 308 (1986) (White,

3J., dissenting from denial of certiorari

in a case involving a sweep search).

III. A Uniform Standard

Is Necessary.

"(T]he protection of the Pourth and

Fourteenth Amendments ‘can only be

realized if the police are acting under

a set of rules which, in most instances,

makes it possible to reach a correct

determination beforehand as to whether

an invasion of privacy is justified in

the interest of law enforcement.'"

Belton, 453 U.S. at 458 (quoting LaFave,

"Case-By-Case Adjudication" Versus

"Standardized Procedures": The Robinson

Dilemma, 1974 S.Ct. Rev. 124, 142).

Currently, there is no “"“"'singular,

familiar standard . . . to guide police

officers, who have only limited time and

expertise to reflect on and balance the

social and individual interests involved

in the specific circumstances they

confront.'" Id. (quoting Dunaway v. New

-l7-

York, 442 U.S. 200, 213-14 (1979)).

Either as an exception to the

warrant requirement or in recognition

that the cursory search at issue here is

inherently reasonable, the Court can use

this case to fashion a standard so that

police officers and courts can respond

in a fashion that ensures that the

protection of the Fourth Amendment is

realized. To be responsive to both law

enforcements needs and privacy

interests, the standard need not require

police officers to have full probable

cause to believe that other persons are

on the premises.

CONCLUSION

A review of the facts of this case

leads to the inescapable conclusion that

the police acted in an entirely appro-

priate manner. They had a right and a

-18-

duty to make certain that third persons,

including Buie's confederate Lloyd

Allen, were not in Buie's basement.

Because the limited, cursory search is a

reasonable law enforcement practice,

this Court should take the opportunity

to correct the error below, resolve the

existing conflict among the lower

courts, and make it clear that police

officers, who face similar situations on

a day-to-day basis, are entitled to use

this limited technique to ensure their

safety and to accomplish legitimate law

enforcement needs.

For these reasons, Petitioner

requests this Court to issue a writ of

-19-

CONTENTS OF APPENDIX

certiorari to the Court of Appeals of Page

Maryland. peg heen opinion of the Court

Respectfully submitted, ow F- ey a tae

ryland, : p r

J. JOSEPH CURRAN, JR., Term, 1587 (filed November 28,

Attorney General of Maryland 19BB) cccccccccccccccccccccccceees sADE l

GARY E. BAIR,* R

Assistant Attorney General ~ eet — be. 4 wer

Seven North Calvert Street eee of a Tae ie —puie _fawara Bure

Munsey Bui lding-Four th Floor September Term, j 987 ( filed

Baltimore, Maryland 21202 October 9, 1987)... ...eeeeeeeeeeesADX. 46

Telephone (301) 576-6422

Counsel for Petitioner

Of Counsel:

Mary Ellen Barbera,

Ann N. Bosse,

Assistant Attorneys General

*Counsel of Record

-20-

IN THE COURT OF APPEALS OF MARYLAND

No. 161

September Term, 1987

JEROME EDWARD BUIE

STATE OF MARYLAND

Murphy, C.J.

Eldridge

Cole

Rodowsky

McAuliffe

Adkins

Blackwell,

JJ.

Opinion by Adkins, J.

Murphy, C.J., Rodowsky, and

McAuliffe, JJ., dissent.

Piled: November 28, 1988

The warrantless search and seizure

of a residential basement produced a red

running suit that was instrumental in

the conviction of petitioner, Jerome

Edward Buie (Buie), of armed robbery and

the use of a handgun in the commission

of a felony. We shall hold that the

search and seizure were unconstitutional

because they violated rights established

by the fourth amendment to the United

States Constitution. The warrantless

search of the basement was not supported

by probable cause to believe that the

requisite exigent circumstances existed.

At Buie's jury trial in the Circuit

Court for Prince George's County (Jacob

S. Levin, J., presiding) part of the

evidence produced by the State was the

red running suit. A witness to the

robbery identified Buie as one of two

~Apx. 2-

robbers, and more specifically, as the

one who wielded a handgun and wore a red

running suit. The red suit had been

seized from Buie's basement’ under

circumstances explained at his

unsuccessful motion to suppress. that

damning piece of evidence.

Facts before Judge Levin at the

suppression hearing established that two

men had robbed a Godfather's Pizza

Restaurant on 3 February 1986. On that

same date the police obtained arrest

warrants for Buie and his alleged

accomplice, Lloyd Allen (Allen). Buie

lived at 5400 67th Avenue, Riverdale,

Prince George's County. That dwelling

was under police surveillance,

apparently from the time of the issuance

of the arrest warrant. On 5 February,

around mid-afternoon, the police, it

~Apx. 3-

seems, satisfied themselves that Buie

was at home. They did this by arranging

to have a telephone call made to Buie's

dwelling; the call verified Buie's

presence, and that of a young woman, at

that location.

Arrest warrant in hand, the police

went to 5400 67th Avenue. They had no

search warrant. The party numbered six

or seven officers. They entered the

home and began to look for Buie on the

first and second floors. A Corporal

Rozar arrived; he ascertained that the

other officers had not yet "cleared the

basement" of the house. Rozar undertook

to "freeze the basement" by standing.at

the top of the basement stairs so anyone

who might be there could not come up

behind the other officers. With service

revolver drawn, Rozar twice “yelled down

~Apx. 4-

to the basement for anyone down there to

come out." When a voice inquired as to

who was calling, Rozar said it was the

police. Eventually, Buie emerged from

the basement, ascended the stairs, and

was searched, handcuffed, and arrested

by Rozar.

At that point Detective Frolich

entered the basement; he noticed, in

plain view, a red running suit "that

fitted the description ... as being a

jumpsuit worn by one of [the robbery

suspects];" he seized it. It bears

repeating that the police had no search

warrant. To the best of their

knowledge, Buie and an unidentified girl

Or woman were the only occupants of the

dwelling. Rozar testified that he was

not concerned about any danger. Frolich

testified that he entered the basement

-~Apx. 5-

"in case there was someone else

[there]."

Based on this evidence, Judge Levin

decided

they had a right to search

and they had a right to

seize, based on the facts of

this case. The man comes out -

from a basement, the police

don't know how many people

are down there. He is

charged with a serious

offense.

I think the police acted

reasonably in this case and

if they had gone back to get

a [search] warrant, that

wouldn't have been there.[~*]

1 Judge Levin's apparent alternative

basis for approving the search and

seizure seems to have been founded on

some notion of a search for evidence

justified because the running suit

"wouldn't have been there" had _ the

police sought a search warrant. In view

of Stackhouse v. State, 298 Md. 203, 468

A.2d 333 (1983), the State wisely has

not attempted to gain affirmance on that

basis.

-Apx. 6-

ee sgesupe— =e

He denied the motion to suppress.”

2 During the course of the trial, the

State “reopened” the suppression

hearing, apparently to produce

additional evidence to support’ the

favorable ruling it had already

received. At this hearing, Detective

Frolich, over Buie's objection,

testified that on the day of Buie's

arrest, Frolich had an arrest warrant

for Buie's alleged accomplice, Allen;

that Allen was still at large; that

Allen and Buie had been arrested in the

preceding November for another armed

robbery; that Buie and Allen "were

running together"; and that a handgun

had been used in the February robbery.

Frolich also had an extraordinary return

of memory. He now recalled that he had

entered the basement specifically "[tJo

see if the co-defendant, Mr. Allen, may

be in the basement." Judge Levin renewed

his denial of the motion to suppress.

"In determining whether the denial

of a motion to suppress ... is correct,

the appellate court looks to the record

of the suppression hearing, and does not

consider the record of the trial

itself." Trusty v. State, 308 Md. 658,

670, 521 LL , 755 (1987) [citation

omitted; ellipsis in original). Nor

will an appellate court consider the

record of a suppression hearing,

"reopened" at the State's request, when

the trial court has previously denied a

motion to suppress evidence. "If the

Cont'd

~Apx. 7-

The Court of Special Appeals

affirmed the trial court's denial of the

motion to suppress the running suit,

holding that the warrantless search and

seizure were reasonable because “if

there is reason to believe that the

arrestee had accomplices who are still

at large, something less than probable

cause -- reasonable suspicion -- should

be sufficient to justify a limited

additional intrusion to investigate the

possibility of their presence." Buie v.

State, 72 °° App. 562, 576, 531 A.2d

1290, 1297 (1987) [emphasis in

court denies a motion to suppress

evidence, the ruling is binding at the

trial unless the court, in the exercise

of its discretion, grants a hearing de

novo on a renewal of the motion.” Md.

Rule 4-252(g)(2). In this case there

was no renewal of the motion. Thus, the

trial judge should not have reopened the

suppression hearing, and any evidence

introduced at the reopened hearing will

not be considered on appeal.

-Apx. 8-

original]. We granted certiorari to

decide the important issue involved.

The fourth amendment provides that

"(t]he right of the people to be secure

in their eee houses eee against

unreasonable searches and seizures shall

not be violated....” U.S. Const. amend.

IV. See also Steagald v. United States,

451 U.S. 204, 212, 101 S. Ct. 1642,

1647, 68 L. Ed. 2d 38, 45 (1981)

("'(T)he Fourth Amendment has drawn a

firm line at the entrance to _ the

house.'"); Payton v. New York, 445 U.S.

573, 576, 100 S. Ct. 1371, 1374-1375, 63

L. Ed. 2d 639, 644 (1980) (police may

not make a warrantless entry into a

suspect's home in order to make a

routine felony arrest); Silverman v.

United States, 365 U.S. 505, 51l, 81 S.

Ct. 679, 683, 5 L. Ed. 2d 734, 739

-~Apx. 9-

(1961) ("At the very core [of the Fourth

Amendment] stands the right of a man to

retreat into his own home and there be

free from unreasonable governmental

intrusion."); United States v. Winsor,

846 F.2d 1569, 1574 (9th Cir. 1988)

("[T)he expectation of privacy in one's

home is ... most jealously guarded by

the Fourth Amendment...."). Police are,

whenever practicable, required to obtain

a search warrant, supported by probable

cause, from a neutral and detached

magistrate. See, e.g., Gerstein v.

Pugh, 420 U.S. 103, 112, 95 S. Ct. 854,

862, 43 L. Ed. 2d 54, 64 (1975).

Upon the arrest of an individual,

in his home and when there is no search

warrant, the police ordinarily may only

search the area of the house within his

immediate control. See Chimel ov.

-Apx. 10-

California, 395 U.S. 752, 89 S. Ct.

2034, 23 L. Ed. 2d 685 (1969). And

there is generally “no ... justification

--» for routinely searching any room

other than that in which the arrest

occurs...." Id. at 763, 89 S. Ct. at

2040, 23 L. Ed. 2d at 694. Many federal

and state courts have held, however,

that the scope of a search incident to

arrest may exceed the suspect's

“wingspan” when exigent circumstances

exist. See generally 2 W. LaFave,

Search and Seizure §§ 6.4(b)-(c) (2d ed.

1987); 1 W. Ringel, Searches & Seizures,

Arrests and Confessions §12.6(a) (1979);

Joseph, The Protective Sweep Doctrine:

Protecting Arresting Officers From

Attack by Persons Other Than the

Arrestee, 33 Cath. U.L. Rev. 95 (1983);

Kelder & Statman, The Protective Sweep

~Apx. ll-

Doctrine: Recurrent Questions Regarding

the Propriety of Searches Conducted

Contemporaneously With an Arrest On or

Near Private Premises, 30 Syracuse L.

Rev. 973 (1979); Project, Seventeenth

Annual Review of Criminal Procedure:

United States Supreme Court and Courts

587-588 (1988). The burden to show the

existence of exigent circumstances rests

with the government. Vale v. Louisiana,

399 U.S. 30, 34, 90 S. Ct. 1969, 1972,

26 «OL. Ed. 24 409, 413 (1970);

Stackhouse v. State, 298 Md. 203, 217,

468 A.2d 333, 341 (1983). These exigent

circumstances often are claimed in the

guise of a protective sweep of the

premises. 3

3 Other exigent circumstances permit

police to conduct warrantless

Cont'd

-Apx. 12-

A protective sweep consists of a

brief cursory search, in most cases,

intended to secure the premises, protect

the police from any persons hiding or

remaining on the premises, or to find

accomplices of the arrestee for whom the

police also have arrest warrants. See,

e.g-, United States v. Caraza, 843 F.2d

searches. See, e. Ses Warden v. Hayden,

387 U.S. 254, —* 99, 87 S. Ct. ,

1645-1646, 18 L. Ed. 24 782, 787 (1967)

("hot pursuit” of a fleeing suspect into

a dwelling); Schmerber v. California,

384 U.S. 757, _ ’ . . ,

18° -1836, 16 L. Ed. 2d 908, 919-920

(1966) (imminent destruction of

evidence); Ker v. California, 374 U.S.

23, 40-41, 83 S. Ct. 1623, 1633- -~1634, 10

L. Ed. 2d 726, 742 (1963) (imminent

destruction of evidence in a

dwelling). But see Mincey v. Arizona,

437 U.S. 385, 394, 36 8. tt. 408 ; ,

2414, 57 L. Ed. 2d 290, 301 (1978)

(seriousness of offense under

investigation does not create exigent

circumstances); Vale v. Louisiana, 399

U.S. 30, 35, 90 S. t. ° , 26

L. Ed. 2d 409, 414 (1970) (an arrest in

front of suspect's dwelling is not an

exigent circumstance that will justify a

warrantless search of the dwelling).

~Apx. 13-

432, 435 (llth Cir. 1988) (per curiam);

United States v. Standridge, 810 F.2¢

1034, 1037 (llth Cir.) (per curiam),

cert. denied, __-*U.S. ___, 107 S. Ct.

2468, 95 L. Ed. 24 877 (1987); United

States v. Bernard, 757 F.2d 1439, 1443

(4th Cir. 1985); United States v. Apker,

705 F.2d 293, 306 (8th Cir. 1983), cert.

denied, 466 U.S. 950, 104 S. Ct. 2151,

80 L. Ed. 2d 538 (1984), 465 U.S. 1005,

104 Ss. Ct. 996, 79 L. Ed. 2d 229

(1984); United States v. Gardner, 627

F.2d 906, 909-910 (9th Cir. 1980);

United States v. Christophe, 470 F.2d

865, 869 (2d Cir. 1972), cert. denied,

411 U.S. 964, 93 S. Ct. 2140, 2162, 36

L. Ed. 24 648 (1973); see generally 2 W.

LaFave, supra, §§ 6.4 (b)-(c).4

4 oA "protective sweep” and a “search

for potential accomplices" are often

Cont'd

~Apx. 14-

In United States v. Briddle, 436

P.2¢ 4 (8th Cir. 1970), cert. denied,

401 U.S. 921, 91 s. ct. 910, 27 L. Ed.

2d 824 (1971), the court distinguished

Chimel from those cases where a cursory

search is necessary. Briddle, 436 F.2d

at 8. The court noted that the police

officers in Chimel, armed with an arrest

warrant, were at Chimel's home, with his

classified as separate exigent

circumstances which may justify

warrantless intrusions. See 2 W.

LaPave, rch and Seizures §§ 6.4 (b)-

rationale supporting these searches are

in many cases the same -- safety and

protection of law enforcement

officers. generally ic: In_ the

present case rpora r testified

that he was not concerned about any

danger. Nonetheless, the fact that an

ee to an armed robbery was on

the loose arguably might support the

inference that safety was a concern of

the arresting officers. The terms

“protective sweep" and “search for

potential accomplices" are

indistinguishable in this case. For the

sake of brevity, the term protective

sweep will be used hereinafter.

~Apx. 15-

wife, waiting for him to arrive home.

Id. Purther, Chimel “was arrested under

circumstances that did not occasion the

officers to conduct a cursory viewing of

the house premises concurrently with the

arrest as a security measure." Id. See

also Payton, 445 U.S. at 589, 100 S. Ct.

at 1381, 63 wb. 84. 2 at 652

(recognizing that, upon the execution of

an arrest warrant, there may be a need

to check the premises for safety

reasons). If the police have

justifiably carried out a protective

sweep, any evidence or contraband in

plain view may be seized. See, @-g-»

Bernard, 757 F.2¢ at 1443; see generally

Arizona v. Hicks, _ U.S. ’ , 107

s. ct. 1149, 1153, 94 L. Ed. 24 347,

354-355 (1987); Coolidge v. New

Hampshire, 403 U.S. 443, 465, 91 Ss. Ct.

-Apz. 16-

2022, 2037, 29 L. Ed. 2d 564, 582

(1971).

When 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. See Doering v. State, 313

Md. 384, 397, 545 A.2d 1281, 1287

(1988). Thus, 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. See Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.

Ed. 2d 889 (1968); Lee v. State, 311 Md.

642, 537 A.2d 235 (1988). See also New

-Apx. 17-

Jersey v. T.L.0., 469 U.S. 325, 105 S.

Ct. 733, 83 L. Ed. 2d 720 (1985) (lower

expectation of privacy in a _ public

school); Winsor, 846 F.2d at 1575-1579

(illustrating that the Supreme Court has

upheld searches, conducted on less than

probable cause, only in public places

which, by their nature, give rise to a

lower expectation of privacy). And

because the expectation of privacy in a

motor vehicle is less than in a home,

"the exceptions [to the warrant

requirement] are more numerous." Doering

at 397, 545 A.2d at 1288. See also New

York v. Class, 475 U.S. 106, 106 S. Ct.

960, 89 L. Ed. 2d 81 (1986). But

[w]hen the expectation of

privacy is legitimately high,

only the most exigent

circumstances will justify a

warrantless intrusion. Thus,

when the sanctity of the home

is involved, the exceptions

to the warrant requirement

-Apx. 18-

are few.

Doering at 397, 545 A.2d at 1287-1288.

Thus, 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.

United States v. Kolodziej, 706 F.2d

590, 596 (Sth Cir. 1983) (quoting United

States v. Smith, 515 F.2d 1028, 1031

(Sth Cir. 1975), cert. denied, 424 U.S.

917, 96 S. Ct. 1119, 47 L. Ed. 2d 322

(1976)). See also United States v.

Cravero, 545 F.2d 406, 418 (5th Cir.

1976), cert. denied, 430 U.S. 983, 97 S.

Ct. 1679, 52 L. Ed. 2d 377 (1977), 429

U.S. 1100, 97 S. Ct. 1123, 51 L. Ed. 2d

549 (1977) (cursory safety check

permitted if circumstances provide, at

minimum, probable cause to believe a

serious threat to safety is present);

and Commonwealth v. Elliott, 714 S.W.2d

494, 496 (Ky. Ct. App. 1986) (burden is

on government to prove that officers had

probable cause to believe there was

serious threat of danger). The Supreme

Court has taken the probable cause

approach to the exigent circumstance of

"hot pursuit.”

See United States v. Santana, 427 U.S.

38, 42-43, 96 S. Ct. 2406, 2409-2410,

49 L. Ed. 2d 300, 305 (1976) (police

must have probable cause to follow a

suspect in “hot pursuit" into a

dwelling). See also Hicks, U.S.

at , 107 S. Ct. at 1154, 94 L. Ed. 2d

at 356 ("A dwelling place search

requires probable cause....").>

5 Probable cause must be based on an

objective standard because "'liljé

Cont'd

~Apx. 20-

We recognized the same principle

when, in the context of the warrantless

search of a dwelling, we observed that

“exigency implies urgency, immediacy,

and compelling need,” Stackhouse, 298

Md. at 212, 468 A.2d at 338, and “that

the exception for exigent circumstances

is to be construed narrowly." Id. at

215-216, 468 A.2d at 340. See also

@.g-, Mincey v. Arizona, 437 U.S. 385,

393-394, 98 S. Ct. 2408, 2414, 57 L. Ed.

290, 301 (1978) (warrant required to

search a home unless the exigencies are

subjective good faith alone were the

test, the protections of the fourth

amendment would evaporate, and_ the

people would be “secure in their ...

houses ...," only in the discretion of

the police.'" Terry v. Ohio, 392 U.S.

1, 22, 88 S. Ct. [868, 1880, 20 L. Ed.

2d 889, 906 (1968) [citation omitted].

See also Herod v. State, 311 Md. 288,

299, 534 A.2d 362, 367 (1987) (police

officer's subjective determination that

investigatory stop was justified is not

controlling).

~Apx. 21-

compelling).

With these principles in mind, we

turn again to this case. The State

insists that, on the facts of this case,

a reasonable police officer would have

had ample ground to believe that there

was an accomplice in Buie's home and

that a sweep was required to ensure the

safety of the arresting party. It

relies to a considerable extent on a

line of cases following Guevara v.

Superior Court, 7 Cal. App. 3d 531, 86

Cal. Rptr. 657 (1970). In that case,

police arrested Guevara, a drug dealer,

in the living room of his home. Guevara

at 533, 86 Cal. Rptr. at 658. They

then searched the kitchen and found

drugs. Id. The California appellate

court found the search a proper effort

to seek possible confederates. Id. at

-Apx. 22-

534-535, 86 Cal. Rptr. at 659. But

the facts before the court in Guevara

were far more substantial than those

before the Circuit Court for Prince

George's County in this case. In the

California case, the police had been

informed that other persons frequented

Guevara's apartment and that a drug

buyer from San Francisco was expected

momentarily. They had specific

information showing a likelihood, a real

probability, that confederates would be

present. In our case we have no more

than the knowledge that two days

previously Buie had been accompanied by

an accomplice, Allen, when the robbery

was committed. -

A case more helpful to the State is

People v. Block, 6 Cal. 3d 239, 491 P.2d

9, 98 Cal. Rptr. 657 (1971) (en banc).

-Apx. 23-

There, police raided a “pot party” in a

home, arresting Block and three others

in the living room and two additional

merry makers in the adjacent dining

room. Block, 6 Cal. 3d at 241-242, 491

P.2d at 10<ll, 98 Cal. Rptr. at 658-

659. The stairway lights in the large

house were on, and a policeman went

upstairs to look for other partygoers.

Id. at 242, 491 P.2d at 11, 98 Cal.

Rptr. at 659. He found none, but did

discover marijuana. Id. That

warrantless search was upheld because

there might have been other felons in

the dwelling; the party was of

indeterminate size, and the stairway

lights were on. Id. at 245-246, 491

P.2d ac 13-14, 98 Cal. Rptr. at 661-

662. But in our case there was no gang

of indeterminate size, no knowledge that

~Apx. 24-

| -

anyone but Buie and the young woman were

in the house, and nothing like a lighted

stairway to suggest that the contrary

might be true. We find apt the language

of another California case in which a

warrantless protective sweep was struck

down:

There is, of course, always

the possibility that some

additional person may be

found in a house outside of

which an arrest took place.

But the mere possibility of

additional persons in the

house, without more, is not

enough to provide probable

cause to search the entire

premises for additional

suspects once the suspect

whom the officers had sought

was arrested.

Dillon v. Superior Court, 7 Cal. 3d 305,

314, 497 P.2d 505, 511, 102 Cal. Rptr.

161, 167 (1972) (en banc).

In some respects, Guevara is like

United States v. Bernard, 757 F.2d 1439

(4th Cir. 1985). In that case, police,

~Apx — 25-

in a helicopter, conducted a

surveillance of suspected marijuana

fields in West Virginia. Bernard, 757

F.2d at 1440. From the air, the police

spotted three adults. Id. at 1441. The

ground crew, upon their arrival on the

scene, located only two adults; upon

being questioned by the ground crew, one

of the two adults denied that a third

was present. Id. at 1442. In order to

confirm their suspicion that a third

person might be around, the police

conducted a protective sweep of the

curtilage of the farm. Id. During the

course of the protective sweep, the

police located marijuana in the barn.

Id. The defendant's motion to suppress

the evidence was denied by the district

court. Id. The Fourth Circuit

affirmed, noting that the police had a

~Apx. 26-

reasonable fear for their safety based

upon the circumstances of the case: the

missing third person, the defendant's

evasive response to questioning, and the

nature of the growth and trade of

illegal drugs. Id. at 1443. The court

held that the evidence was in plain view

and could be seized during the properly

conducted sweep. Id. In Bernard, as in

Guevara (but not in the case before us),

the police had information about the

presence of additional but unaccounted

for accomplices. Purther, in Bernard

(but not here) there also were the

evasive answers. See also Doering, 313

Md. at 400-401, 545 A.2d at 1289

(warrantless search of bus upheld when

arrested suspects lied about presence of

others in the vehicle and police did not

know whether others were aboard).

~Apx. 27-

Some courts, it is true, seem to

require a level of suspicion (or

exigency) even less than that present in

Guevara or Bernard. See, e.g., United

States v. Jackson, 778 F.2d 933, 936-

937 (2a Cir. 1985), cert. denied,

___*-U.S. __, 107 S. Ct. 308, 93 L. Bd.

2d 282 (1986) (protective sweep allowed

based on general knowledge that drug

dealers are often armed and possible

destruction of evidence); United States

v. Marszalkowski, 669 F.2d 655, 665

(llth Cir.), cert. denied, 459 U.S. 906,

103 S. Ct. 208, 74 L. Ed. 2d 167 (1982)

(the fact that drug dealers are likely

to be armed and dangerous and that drugs

can be easily disposed of justified

protective sweep). There appears to be

no clear majority position on the

issue. See Jackson v. United

~Apx. 28-

States, _—saxU.S. _—s,:~«107 'S. Ct. 308,

308, 93 L. Ed. 2d 282, 282-283 (1986)

(White, J., dissenting to denial of writ

of certiorari and noting split among the

federal circuits on the issue); United

States v. Gardner, 627 F.2d 906, 910 n.3

(9th Cir. 1980) (same); Joseph, supra,

at 119, 119 n.144; Kelder & Statman,

supra, at 1006-1035, 1008 n.106. We

believe, however, that the Supreme Court

Gecisions require a high showing of

exigent circumstances when the

warrantless search of a home is

implicated. And we believe that our

cases, such as Doering and Stackhouse,

as well as cases from other courts, have

recognized this principle.

Por example, in United States v.

Hatcher, 680 F.2d 438 (6th Cir. 1982),

the police arrested the defendant in his

~Apx. 29-

basement. Hatcher, 680 F.2d at 442-

443. Thereafter, they found cocaine

during the course of a protective

sweep. Id. They had, however, no

evidence that the defendant was

dangerous or that any other persons were

on the premises at the time of the

arrest. Id. at 444. The court reversed

the district court's determination that

the sweep was permissible because “‘the

subject of drugs is a dangerous one ...

especially’” for law enforcement

officers, and held that the sweep

violated the fourth amendment. Ic. See

also United States v. Kinney. 638 F.2¢

941, 944 (6th Cir.), cert. Genied, 452

U.S. 918, 101 S. Ct. 3056, 48°. Be.

24 423 (1981) (requiring that “a serious

and demonstrable potential for Ganger

exists" before a protective sweep will

-Apx. 30-

be permitted).

In United States v. Gamble, 473

P.2d 1274 (7th Cir. 1973), three

individuals were accused of aggravated

battery and armed robbery. Gamble, 473

P.2d at 1275. Two of the defendants

were immediately taken into custody by

the police. Id. Thereafter, the police

obtained an arrest warrant for the third

defendant (Gamble). Id. at 1275 n.1l.

They went to Gamble's residence, knocked

on the door, and identified themselves

as police officers. Id. at 1275. The

police received no reply but heard

“rustling” noises from within. Id.

They broke into the residence and found

Gamble and a woman emerging from a

bedroom and another woman in the

kitchen. Id. The police arrested

Gamble and proceeded to go into the

~Apx. 31l-

bedroom, presumably to check upon a baby

they had noticed. Id. at 1276. There,

they observed the weapon upon which

Gamble's prosecution was based. Id.

The Seventh Circuit held that this

protective sweep was unconstitutional.

Id. at 1276-1277. _ The court found that

the government's arguments justifying

the search, including that the defendant

was accused of a violent crime involving

a dangerous weapon, his interest in

handguns, and the feared presence of

dangerous criminals were unconvincing.

Id. at 1277. In particular, the court

noted that Gamble's two accomplices in

the crime were both safely in police

custody. Id. Thus, the police were not

permitted to search beyond the Chimel

limits; there were no justifying exigent

circumstances. Id.

-Apx. 32-

Finally, we return to the Pifth

Circuit's decision in United States v.

Kolodziej, 706 F.2d 590 (Sth Cir.

1983). The facts are quite similar to

those now before us. Some half-dozen

police officers, armed with a warrant,

arrested Kolodziej, a drug dealer,

inside the front doorway of his home.

Kolodziej, 706 F.2d at 592. They then

conducted a cursory “safety check" of

the remainder of the dwelling -- an

activity they attempted to justify

because a tipster had advised them that

Kolodziej was known to be armed and

occasionally worked with a partner

called "Barney." Id. The Fifth Circuit

found the justification insufficient to

show the necessary exigent

circumstances:

We conclude that no

circumstances are present in

~Apx. 33-

this case which would have

led a reasonable man _ to

believe that his safety was

endangered. The only

evidence offered by the

government to justify the

security sweep was the

testimony of one of the

arresting officers that he

thought there was a

possibility that a man named

"Barney", who worked with the

defendant, might be in

residence at the time of the

arrest, and that Kolodziej

occasionally carried a_ .357

magnum pistol. No evidence

was presented to show how the

officers had reason to

believe that Barney was

there, in fact had ever been

there, or was dangerous.

Drug dealers frequently have

accomplices, but that fact

alone does not justify a

warrantless search. That the

defendant carried a firearm

is also insufficient. At the

time the officers made the

safety check, Kolodziej was

already in custody, unarmed,

handcuffed, and clearly no

threat to the half-dozen

agents present at the arrest.

that the police were aware that Allen

had participated with Buie in the

Godfather's Pizza robbery. But it is

also true that the police had no

information supporting a serious and

demonstrable likelihood that Allen was

in the dwelling at the time of Buie's

arrest or had ever been or even visited

there. Indeed, the police had Buie's

home under surveillance since’ the

robbery and apparently had not spotted

Allen in or about the dwelling. Nor did

their pre-arrest telephone call indicate

the presence there of anyone but Buie

and the young woman. As to that,

Detective Frolich knew only that there

was a man and a girl in the house.

True, a gun had been used in the

Id. at 597.

robbery. But

This statement could be applied to y ut this fact was not

mentioned at th

our case almost verbatim. True it is e suppression hearing.

-Apx. 34- ~Apx. 35-

Moreover, at the time of the warrantless

search, Buie was safely outside the

house, handcuffed and unarmed. See also

Stackhouse v. State, 298 Md. 203, 217-

218, 468 A.2d 333, 341 (1983) (fact that

defendant was handcuffed and outside

attic where evidence was found prevented

justification of search on basis of

Chimel).

In summary, the facts in this case

simply do not provide probable cause to

support a reasonable belief that an

accomplice was in Buie's home, that

other confederates might have been

there, or that any other serious and

demonstrable potentiality for danger

existed. There was insufficient showing

of exigent circumstances to support a

warrantless search of the home. The red

running suit should have been

-Apx. 36-

We decline to rule that the fourth

amendment offers less protection to one

in a home when a search is “cursory” as

opposed to “full blown." A search is a

search. Hicks, U.S. at , 107 S.

Ct. at 1154, 94 Ly Ed. 24 at 356. If

the search of a home is warrantless, it

Ordinarily must be justified by exigent

circumstances not present here.

~Apx. 37-

IN THE COURT OF APPEALS OF MARYLAND

No. 161

September Term, 1987

JEROME EDWARD BUIE

STATE OF MARYLAND

Murphy, C.J.

Eldridge

Cole

Rodowsky

McAuliffe

Adkins

Blackwell,

JJ.

Dissenting opinion by McAuliffe J.

in which Murphy, Codecs and

Rodowsky, J., join

Filed: November 28, 1988

-Apy. 38-

McAuliffe, J., dissenting.

I cannot agree that the limited

intrusion by the police into the

basement of Buie's home constituted an

unreasonable search in violation of the

Fourth Amendment.

The majority acknowledges that a

Fourth Amendment determination of

reasonableness involves a balancing of

the nature of the intrusion against the

objectively reasonable expectation of

privacy that exists under the particular

circumstances. Yet, the majority

insists on considering the intrusion in

this case exactly as if it were a

warrantless entry across the threshold

of the home. It is not. The officers

crossed the threshold of this home in

strict compliance with the Fourth

Amendment. Payton v. New York, 445 U.S.

~Apx. 39-

573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980). They had a warrant for Buie's

arrest for armed robbery and they had

reason to believe Buie was within the

home. The 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.

When the police team entered Buie's

home armed with a valid warrant for his

arrest, they fanned out to begin the

search. Unquestionably, the police

could have gone into the basement at

that time. As the Supreme Court said in

Payton v. New York, supra:

If there is sufficient

evidence of a citizen's

participation in a felony to

persuade a judicial officer

“Apx. 40-

that his arrest is justified,

it is constitutionally

reasonable to require him to

his doors to the

ficers of the law.

Id., 445 U.S. at 602-03.

Being legitimately in the basement area,

the police could have seized the red

running suit, which was in plain view

and which the police had probable cause

to believe was evidence of a recent

felony. Arizona v. Hicks, 480 U.S. 321,

107 $.Ct. 1149, 94 L.Bd.24 347 (1987).

The distinction in the present case is

that Buie came out of the basement and

his arrest was completed before the

police entered the basement. I do not

suggest that this is a distinction

without a difference. Chimel __v.

California, 395 U.S. 752, 89 S.Ct. 2034,

23 L.£4.246 685 (1969), holds that the

police have no automatic right to search

an entire home merely because 4 person

~Apx. 41-

is arrested therein. Yet, the

consideration of the totality of

circumstances, including the extent of

the right of the officers to search the

entire home which existed until Buie

changed the situation by surrendering at

the top of the stairs, is helpful in

understanding the level of expectation

of privacy that the law will reasonably

afford to Buie concerning items in plain

view in the basement.

Moreover, Chimel addresses full-

blown searches and I do not suggest that

the police would have been entitled to

conduct such a search of i this

basement. The only search that was

reasonable under these circumstances was

a limited search for a person or

persons. This type of search is less

intrusive, and may be accomplished

“Apx. 42-

fairly quickly. It does not permit the

opening of desks or the examination of

documents.

The type of search that was

conducted in this case was justified

under the circumstances. Buie was

arrested only after hiding in the

basement. Sergeant Dunn had yelled down

into the basement when the police

arrived, but received no response.

Corporal Rogar then twice yelled into

the basement for anyone to come out

before Buie finally responded. The

police had probable cause to believe

that the armed robbery which had

occurred 48 hours earlier had been

committed by two persons -- Buie and

Lloyd Allen. The police had obtained

arrest warrants for, and were locking

for, both of then. Contrary to the

~Apz. 4)-

statement in the majority opinion that

"to the best of [the police officers’)

knowledge, Buie and an unidentified girl

or woman were the only occupants of the

@welling,” the police did not know how

many persons were in the home. They

knew that Buie and a woman were present

-- they d@id not know how many more

persons might have been present. Por

the police to make a quick sweep of the

basement from which Buie had emerged was

reasonable, whether to check for the

presence of the accomplice who had so

recently been involved with Buie and an

armed robbery, or to protect themselves

from others who might have been hiding

with Buie. The Court of Special Appeals

properly considered the extent of Buie's

privacy interests, the limited nature of

the intrusion, and the exigencies of the

~Apx. 44-

situation in concluding that the search

was reasonable. Buie_ v. State, 72

Md.App. 562, 570-76, 531 A.2d 1290

(1987). I would affirm.

Chief Judge Murphy and Judge

Rodowsky have authorized me to say that

they join in this dissenting opinion.

~Apx. 45-

REPORTED

IN THE COURT OF SPECIAL APPEALS

_ OP MARYLAND —

No. 100

September Term, 1987

JEROME EDWARD BUIE

STATE OF MARYLAND

Wilner,

Alpert,

Bloom,

JJ.

Opinion by Bloom, J.

Filed: October 9, 1987

“~Apx. 46-

A jury in the Circuit Court for

Prince George's County, presided over by

Judge Jacob Ss. Levin, convicted

appellant, Jerome Edward .Buie, of

robbery with a deadly weapon and the use

of a handgun in the commission of a

felony. Judge Levin sentenced appellant

to consecutive sentences of twenty years

for the robbery with a deadly weapon and

fifteen years for the use of a handgun.

In this appeal from those

judgments, appellant asserts that the

trial court erred when it denied his

motion to suppress evidence seized at

the time of his arrest. He also

contends that the trial court erred when

it called his cousin, Antonio Buie, as

its witness. We disagree with

appellant's assertions of error and will

affirm the judgments.

~Apx. 47-

I Motion to Suppress

Evidence produced at the pre-trial

hearing on appellant's motion to

suppress disclosed that on 5 February

1980 seven police officers arrived at

appellant's home with a valid warrant

for his arrest. The police also had a

warrant for the arrest of Lloyd Allan.

Based on eyewitness identifications,

both suspects were charged with the

robbery of a pizza shop, which had taken

place two days earlier.

While two of the officers remained

outside to secure the exits, the other

five entered appellant's home. Corporal

Rozar, one of those five, stood at the

entrance to a flight of stairs leading

down to a basement. Corporal Rozar

called down the stairs several times,

identifying himself and commanding

-~Apx. 48-

everyone in the basement to come out

with hands raised. Eventually appellant

emerged from the basement and was

Promptly arrested, handcuffed, and

searched. After appellant's arrest,

Detective Frolich went into the basement

where he saw, in plain view, a red

jogging suit. He seized the jogging

suit because it matched a description of

the clothing worn by the armed robber at

the scene of the crime for which

appellant was arrested.

Cross-examining Detective Frolich

at the suppression hearing, defense

counsel elicited the following with

respect to the officer's entry into the

basement:

Q. You observed the officef

search [appellant )?

A. Yes, sir.

Q. And did he find anything

-Apx. 49-

on him?

I don't recall.

And you observed the

officer handcuff

[appellant )?

Yes, sir.

And then place him under

arrest?

Yes, sir.

What did the officer do

with [appellant] at that

point?

I don't know.

Took him out,

whatever. At this

point, you decided to go

into the basement?

Yes, sir.

Did you know what you

were looking for?

I just went down there

in case there was

someone around.

Did you have any reason

to believe that anyone

else was in the house

besides Mr. Buie?

-Apx. 50-

At the

Judge Levin overruled appellant's motion

I had no idea who lived

there

But, was there any

particular knowledge

that allowed you to know

that [appellant] was at

home at that time?

Yes, sir.

What was that?

I had a secretary in my

office call his

residence and ask to

speak to him.

And who answered the

phone?

I don't know who

answered the phone.

But, I think it was

female and then she had

a conversation with Mr.

Buie.

So you knew there was a

girl and a man in the

house?

Yes, sir.

close of the suppression hearing,

-Apx. 5l-

to suppress, stating that Detective

Frolich's search of the basement was

reasonable to insure the officers'

safety because appellan. was charged

with a serious offense involving a

handgun and because the police did not

know who else was in the basement

following appellant's arrest.

During the course of trial, before

offering the jogging.:suit in qwidence,

the State's Attorney asked the trial

judge to reopen the suppression hearing

in order to clarify the facts and

Circumstances surrounding the basement

search. The trial judge reopened the

Suppression hearing over appellant's

objection. The jury left the courtroom

and Detective Frolich once again took

the stand. Detective Frolich reiterated

that warrants were sworn out for both

-~Apx. 52-

Re AL OO Md mo te EWR, Ne be tbe. AD a:

{

appellant and his suspected accomplice

and stated, for the first time, that the

officers who arrived at appellant's home

on 5 February 1986 were armed with both

warrants. Further questioning of

Detective Frolich produced the

following:

Q. Now, at the time you

arrested [appellant],

had an arrest of

[appellant's accomplice]

been made?

A. No, sir.

Q. And did you have any

knowledge or information

concerning how

[appellant] and [the

accomplice] were related

as far as - in any

fashion?

A. They had been arrested

prior, in November, for

an armed robbery.

Q. Did you know whether

-~Apx. 53-

they knew each other any

way?

A. I had information, or

the information from the

other robbery, that they

were running together.

Q. Okay. And at the time

you went down to the

basement, why did you go

there?

A. To see if [appellant's

accomplice] may be in

the basement.

A. Okay. At that point,

you didn't know whether

(appellant's accomplice]

would be there or not?

A. No, sir.

Judge Levin found no cause to

change his previous ruling based on the

second hearing, and again overruled the

motion to suppress. Appellant

challenges Judge Levin's reopening of

the hearing as well as the denial of the

motion to suppress.

We note, initially, that the State

me —

’

bears the burden of proving

circumstances which justify a

warrantless search. - §tackhouse _v.

State, 298 Md. 203, 220 (1983) (citing

Coolidge v. New Hampshire, 403 U.S. 443,

455, 91 S. Ct. 2022, 2032, 25 iL. Ed. 2d

564, 576 (1971); United States v.

Teffers, 342 U.S. 48, 5l, 72 S. Ct. 93,

95, 96 L. Ed. 59, 64 (1951); McDonald v.

United States, 335 U.S. 451, 456, 69 S.

Ct. 191, 193, 93 L. Ed. 153, 158

(1948). Furthermore, “in determining

the lawfulness of the search we may

concern ourselves only with what the

police officers believed at the time."

Stackhouse, supra, at 220 (citing Ker v.

California, 374 U.S. at 40 n.12, 83 S.

Ct. at 1633 n.12, 10 L. Ed. 2d at 742

n.12 (1963); Johnson v. United States,

333 U.S. 10, 17, 68 S. Ct. 367, 370,

-Apx. 55-

92 L. Ed. 436, 442 (1948) [footnote

omitted]).

The decision at a pre-trial

suppression hearing is binding at the

trial unless the trial judge, in his

discretion, grants a hearing de novo on

the motion, Hall v. State, 15 Md. App.

363, 370 (1972); Md. Rule 4-252(g9)(2),

in which event our review is limited to

the de novo ruling. Bartram v. State,

33 Md. App. 115, 140 (1976).

We agree with appellant's

contention that the trial judge had no

authority to reopen the suppression

hearing at the State's request.

Maryland Rule 4-252(g9)(2) states that

"liJf& the court denies a motion to

suppress evidence, the ruling is binding

at the trial unless the cour’, in its

discretion, grants a de novo hearing on

-Apx. 56-

a renewal of the motion.” Here, there

was no renewal of the motion, and the

trial judge did not grant a de novo

hearing. He merely reopened’ the

suppression hearing to allow the State

to reinforce the testimony of one

witness. That is not within the

contemplation of the Rule.

With regard to violations of the

Maryland Rules of criminal procedure,

the Court of Appeals stated in Noble v.

State, 293 Md. 549, 557-58 (1982):

This Court has firmly adhered

to the principle that the

rules of [criminal] procedure

are precise rubrics to be

strictly followed, and we

shall continue to do so. A

violation of one of these

rules constitutes error,

normally requiring such

Curative action or sanction

as may be appropriate.

It does not follow, however,

that the harmless error

~Apx. 57-

doctrine has no application

to the Maryland Rules and

that a violation of a

procedural rule can never be

harmless....

If the standard for harmless

error is met, a violation of

a procedural rule will not

ordinarily result in 4

reversal of a conviction.

The test for harmless error in

criminal cases was set forth in Dorsey

v. State, 276 Md. 638, 659 (1976), as

follows:

[W]hen an appellant, in a

criminal case, establishes

error, unless a reviewing

court, upon its own

independent review of the

record, is able to declare a

belief, beyond a reasonable

doubt, that the error in no

way influenced the verdict,

such error cannot be deemed

"harmless" and a reversal is

mandated.

The error in reopening the

suppression hearing had no influence on

the trial proceedings and certainly not

-Apx. 58-

on the jury's verdict. The trial judge

did not alter the earlier ruling on

admissibility of the seized evidence as

a result of the later testimony. The

motion to suppress was denied on the

basis of the pre-trial hearing. we

believe that the court's initial ruling

was correct; therefore the later

testimony had no significance and any

error in receiving it was harmless

beyond a reasonable doubt.

In Chimel v. California, 395 U.S.

752, 23 L. Ed. 2d 685, 89 S. Ct. 2034

(1969), the United States Supreme Court

held that, incident to a lawful arrest,

police officers may search the

arrestee's person and areas "'‘within his

immediate control’ - construing that

phrase to mean the area from within

which he might gain possession of a

-Apx. 59-

weapon or destructible evidence." Id.

at 763, 23 L. Ed. 2d at 694. The Court

held that all other searches conducted

contemporaneous to an arrest must be

made pursuant to a warrant or must fall

within one of the “well-recognized

exceptions" to the warrant

requirements. Id. at 763, 23 L. Ed. 2d

at 694.

Following Chimel, the Court of

Appeals of Maryland, in Stackhouse,

supra, held that incident to a lawful

arrest any contemporaneous search beyond

the arrestee's "wingspan" must be made

pursuant to a warrant or to an exception

to the warrant requirement.

There is some similarity between

the facts of Stackhouse and the facts of

this case. In each case police officers

entered appellant's home to execute an

-Apx. 60-

= ae

arrest warrant and, after making the

arrest, "searched" the arrestee's hiding

place.

The similarities between these two

cases end when the reasons for the post

arrest searches are compared. In

Stackhouse, policemen searched the

arrestee's hiding place for evidence

that might be destroyed but were unaware

of any facts to indicate that the

destruction of evidence was imminent or

even likely. In this case, a police

officer who had knowledge that a warrant

had been sworn out for the arrest of an

accomplice went into the basement of

appellant's house where appellant had

been hiding, to see if there was anyone

else hiding there.

In its analysis of the legality of

the search in Stackhouse, the Court

-Apx. 61-

noted that "{i]n holding that the police

may — the area within’ the

arrestee's reach incident to a lawful

arrest, the Supreme Court in Chimel

acknowledged in dicta that exigent

circumstances provided a second

recognized justification for a

warrantless searci. or seizure incident

to arrest. 395 U.S. at 763, 89 S. Ct.

at 2040, 23 L. Ed. 2d at 694." Id. at

338. The Stackhouse Court, however,

defined "exigency" narrowly: "The

meaning of exigent circumstances is that

the police are confronted with an

emergency - circumstances so imminent

that they present an urgent and

compelling need for police action." Id.

at 342. The Court stated: "upholding

warrantless searches based upon exigent

circumstances involves two. principal

-~Apx. 62-

categories of cases: ‘hot pursuit,’ and

destruction or removal of evidence."

Id. at 338.

The Court concluded in Stackhouse

that the post-arrest search of

Stackhouse's hiding place violated the

Fourth Amendment guarantee against

unreasonable searches and _ seizures

because the State failed to demonstrate

exigent circumstances justifying the

search. The Court stated: “Where a

warrantless search is based upon the

destruction or removal of evidence

surrounding circumstances must present a

specific threat to known evidence." Id.

at 339. The facts in Stackhouse failed

to present such a threat.

In the case sub judice, the State

does not argue that Detective Frolich's

post-arrest search of appellant's

-Apx. 63-

eee

basement took place under exigent

circumstances. Detective Frolich was

not in a “hot pursuit" situation; he had

no reason to fear the imminent

destruction of evidence. Nevertheless,

the absence of those two circumstances

does not mean that the invasion of the

basement was unreasonable.

Although Detective Frolich did not

expressly so state, it is certainly

inferable from his testimony at the pre-

trial suppression hearing that he went

into appellant's basement to look for

the suspected accomplice or anyone else

who might pose a threat to the officers

on the _ scene. He knew two arrest

warrants had been issued in connection

with the armed robbery of the pizza

shop; he stated on cross-examination

that he went downstairs not to search

-~Apx. 64-

for evidence but to see if someone else

was there. Who would he be looking for

other than the known accomplice or

someone else who might pose a danger to

him and his fellow officers?

Although Maryland has not

previously determined whether, following

the execution of an arrest warrant,

officers may make a cursory inspection

of the premises where the arrest took

place to search for other’ known

Suspects, other states have ruled in the

affirmative on this issue.

In Guavara_v. Superior Court, 7

Cal. App. 3d 533, 86 Cal. Rptr. 657

(1970), police officers arrested the

accused at his apartment on drug charges

after being informed that a drug

transaction was taking place there.

Following their arrest of the accused,

“~Apx. 65-

police walked through the apartment to

search for other parties to the

transaction. The California appellate

court held that the walk-through search

was reasonable. The court wrote, “It is

clear that the officers had information

which it was their right, and their

duty, to follow.~up. Having arrested

defendant, it was not unreasonable for

them to walk through the house to see if

others were there...." Id. at 535, 86

Cal. Rptr. at 659. The court stated

that such a sweep through the house was

not unreasonably excessive, but

constituted “basic police investigation

of information received." Id. at 535,

86 Cal. Rptr. at 659.

In Jones v. State, 565 S.W.2d 934

(Tex. Crim. 1978), police officers

suspected five men of robbing a

-Apx. 66-

department store. After. arresting three

of the suspects, they arrested the

fourth one in his home, and afterwards

walked through the home to search for

the fifth suspect. The Court of

Criminal Appeals of Texas upheld the

search because:

The officers knew that

appellant was only the fourth

of five robbers who had been

arrested and they were fully

justified for their own

protection to go into the

hall and look into the open

doorways of the bedrooms to

see if the fifth robber, or

someone else, was there who

might cause them harm.

Id. at 937.

In People v. Mack, 27 Cal. 3d 145,

165 Cal. Rptr. 113, 611 P.2d 454 (1980),

police officers were informed that

property stolen by five named suspects

could be found in the garage at the home

of one of the suspects. When officers

~Apx. 67-

approached that suspect's home with the

intention of questioning him, they were

spotted by two men leaving the garage.

The two men reentered the garage and the

officers heard shouting and the sound of

furniture moving. The officers ordered

the occupants out of the garage. Five

men emerged, and an officer entered the

garage to search for additional

suspects. The Court held that the

officer "acted properly in entering the

garage to search for additional

suspects. He did so out of

justification for his own safety... he

did not know whether the five men who

had come out of the garage included all

five of the accused burglars." Id. at

151, 165 Cal. Rptr. at 116, 611 P.2d at

457.

The rationale for post-arrest sweep

-Apx. 68-

searches for suspects hinges on the

police officer's reasonable belief that

other suspects are at large; however,

the arresting officer need not have

probable cause to believe that the other

suspects are present. Professor La

Fave, in analyzing Guavara, stated:

It is important to note that

the Guavara Court did not say

that the police had

reasonable grounds to believe

that another offender was on

the premises and that the

entry into the kitchen was

nothing more than a pre-

arrest search for this

person. Rather, the court's

holding appears to be based

on the proposition that once

the police have lawfully

entered the premises and made

an arrest therein, something

less than the usual quantum

of probable cause is needed

to justify a limited

additional intrusion to

investigate the possibility

that other offenders are

present.

2 W. R. La Fave, Search and Seizure, §

6.4(b) at 642 (2d ed. 1987). (Emphasis

-Apx. 69-

in original.) (Footnotes omitted.) The

Guavara rule is limited to those

situations where the police have

information that accomplices of an

arrestee are at large. It has its

natural stopping point where no

accomplices are suspected or where all

known accomplices have been apprehended

previously.

Appellant relies on the recent case

of Arizona v. Hicks, 480 U.S. , 108

S. Ct. _, 94 L. Ed. 2d 347 (1987), in

support of his contention that the

search of his basement and seizure of

his jumpsuit were unlawful. His

reliance is misplaced.

In Hicks, police lawfully entered

the accused's apartment without a

warrant pursuant to an exigent

circumstance: a bullet had been fired

-Apx. 70-

through the floor of Hicks's apartment,

striking and injuring a man in the

apartment below. Police searched

Hicks's apartment for the shooter, for

victims, and for weapons. The police

found and seized weapons and a stocking-

cap mask. One officer then spotted two

expensive stereos which seemed out of

place in Hicks's otherwise squalid

apartment. Acting on a "reasonable

suspicion," the officer lifted the

stereos and noted their serial

numbers. When he contacted headquarters

and reported his observations and

findings, the officer was informed that

the serial number on the stereos in

Hicks's apartment corresponded to the

numbers of stereos recently stolen. The

stereos were then seized.

The Supreme Court held that the

~Apx. 71l-

search and seizure of the stereos were

illegal because they were not supported

by probable cause. Even if police

officers are lawfully in a home, the

search and seizure of items in plain

view must be supported by probable

cause.

It is appellant's contention that

the basement search in the case sub

judice, not being supported by probable

cause, is illegal under Hicks because,

although the officers knew that

appellant's accomplice was at large,

they did not have probable cause to

believe that the accomplice was in the

basement. We think appellant

misinterprets Hicks.

Hicks holds that searches and

seizures of items found pursuant to the

plain view doctrine must be supported by

-Apx. 72-

probable cause to believe that they are

subject to seizure as contraband or

evidence or fruits of crime. The plain

view doctrine presupposes the legality

of the officer's ‘presence onthe

premises. In the case sub judice the

issue is the legality of the officer's

presence in the basement, there being no

contention that the officer had no

probable cause to seize the red jogging

suit which was in plain view once he

entered the basement. Hicks, therefore,

is inapposite.

Appellant also cites Dillon vy.

Superior Court of Santa Barbara County,

102 Cal. Rptr. 161, 497 P.2d 505

(1972). In Dillon, police observed

marijuana growing in appellant's

backyard. The officer arrested

appellant in the backyard, then entered

~Apx. 73-

her home to search for others suspected

of growing the plants. The search was

held to be unlawful because the police

had no probable cause to believe other

suspects were in the house at the time

of the arrest. There is, nevertheless,

some dicta in Dillon to the effect that

even if the arrest had taken place

inside the home the subsequent search

for suspects would have violated the

Fourth Amendment for lack of probable

cause. It was pointed out in a dissent,

however, that no probable cause was

required in Guavara.

We believe that Guavara and the

cases following Guavara are based on

sound reason and logic. The Fourth

Amendment prohibits unreasonable

searches and seizures. Traditionally,

the sanctity of a person's home - his

-Apx. 74-

castle - requires that the police may

not invade it without a warrant except

under the most exigent of

circumstances. But once the police are

lawfully within the home, their conduct

is measured by a standard of

reasonableness. They may not use the

arrest of the suspect within his home as

a pretext to search his house for

evidence (Chimel), unless exigent

circumstances make such a warrantless

search reasonable (Stackhouse); nor may

they even search and seize items in

plain view unless there is probable

cause to believe those items are subject

to seizure (Hicks). But as Professor La

Fave pointed out, supra, if there is

reason to believe that the arrestee had

accomplices who are still at large,

something less than probable cause --

-~Apx. 75-

wal

reasonable suspicion -- should be

sufficient to justify a limited

additional intrusion to investigate the

possibility of their presence.

We hold, therefore, that the court

did not err in denying appellant's

motion to suppress.

II Calling Appellant's Cousin as the

Court's Witness

Under Maryland law, the decision to

call an individual to the stand as the

court's witness lies within the sound

discretion of the court and will not be

overturned absent an abuse of

discretion. Scarborough v. State, 50

Md. App. 276, 282 (1981), citing

Patterson Vv. State, 275 £=Md. 563

(1975). The trial judge should consider

the following facts when determining

whether to call a court's witness:

-Apx. 76-

(1) the prosecutor's

inability to vouch for the

veracity or integrity of the

witness; (2) the close

relationship between the

witness and the defendant;

(3) the existence of

contradictory or inconsistent

statements by the witness;

(4) the hostility of the

witness; and (5) the

necessity for the testimony,

i.e., where the witness

possesses material evidence.

Scarborough v. State, supra, at 292.

Nevertheless, it has been recognized

that a "trial judge should call a

witness as a ‘court witness' only when

the adversary system fails to produce

the necessary facts and a miscarriage of

justice would likely result.”

Patterson, supra, at 577. Also, as the

Court of Appeals has noted, when "...a

witness becomes the court's ‘own

witness' the judge must be scrupulously

careful to preserve an attitude of

impartiality and should never give the

~Apx. 77-

jury the impression he is of the opinion

that the defendant is guilty."

Patterson, supra, at 578 (citations

omitted).

In the case sub judice, the court

called Antonio Buie as a court's witness

at the request of the State. The State

could not vouch for Antonio Buie's

veracity because he had given

conflicting stories to the police and

because he would not tell the State what

his testimony under oath would be. The

witness was closely related to

appellant; he was appellant's cousin and

was living with appellant on the day of

the robbery.

The witness was clearly hostile; he

had ignored the State's subpoena and was

brought to court pursuant to a body

attachment. Antonio Buie's testimony

-Apx. 78-

was material and important, although not

crucial, to the State's case; he was one

of two eyewitnesses to the armed

robbery. Since Antonio Buie met all

five of the criteria listed in

Patterson, the trial court clearly did

not abuse its discretion in calling him

as its own witness.

Appellant further complains that

the trial judge, after calling Antonio

Buie to the stand, never examined hin.

Instead, the State ‘and appellant's

attorney each cross-examined appellant

in turn. Appellant argues that the

-court's failure to examine its own

witness deceived the jury into believing

that Antonio Buie was the State's

witness and in fact made Buie the

State's witness, thus rendering the

State's impeachment of him improper.

-Apx. 79-

We do not agree. The trial judge

Clearly stated that he was calling

Antonio Buie as the court's witness "in

the interest of justice.” It was clear

that Antonio Buie was the court's

witness, not the State's. Nor do we

find fault with the trial judge's

failure to examine the witness. The

Court of Appeals has stated that when

questioning a witness "the court should

be careful to preserve an attitude of

impartiality and against giving the jury

an impression that the court was of the

opinion that the defendant was

guilty." Patterson, supra, at 579

(quoting Gomila v. United States, 146

F.2d 372, 374 (Sth Cir. 1944)). By

declining to examine its own witness,

the court avoided any appearance of

partiality. There was no error.

-~Apx. 80-

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY

APPELLANT.

-Apx. 81-

OPPOSITION

BRIEF

IN THE JOSEPH F. SPANIOL, JR

SUPREME COURT OF THE UNITED me Fon

SEPTEMBER TERM, 1988

onl

No. 88-1369

STATE OF MARYLAND,

Petitioner

JEROME EDWARD BUIE,

Respondent

BRIEF IN CPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The Respondent, Jerome Edward Buie, who is indigent

and who has been found to meet the qualifications for repre-

sentation by the Office of the Pubic Defender for the State

of Maryland, asks leave to file the attached Brief in Oppo-

sition to the State of Maryland's Petition for Writ of

Certiorari to the Court of Appeals of Maryland without pre-

payment of costs and to proceed in forma pauperis pursuant

to Rule 46.

The Petitioner's

Petition is attached hereto.

Affidavit in support of this

L/S hha

n L. Kopolow

sistant Public Defender

Appellate Division

201 Saint Paul Place

Baltimore, Maryland 21202

(301) 333-2751

Counsel for Respondent

IN THE

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM, 1988

No. 88-1369

STATE OF MARYLAND,

Petitioner

Vv.

JEROME EDWARD BUIE,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Jerome Edward Buie, being first duly sworn,

depose and say that I am the Respondent in the above-enti-

tled case; that because of my poverty I am unable to pay the

costs of said proceeding, and that I believe I am entitled

to respond to the State of Maryland's Petition.

I further swear that the responses which I have

made to the questions and instructions below relating to my

ability to pay the cost of litigating the appeal are true.

Are you presently employed? 7

(a) If the answer is yes, state

the amount of your salary or wages

per month and give the name and

address of your employer.

(b) If the answer is no, state the

Gate of your last employment and

the amount of the salary and wages

pexy month which you received

Have you received within the past

twelve months any income from a

business, profession or other form

of self-employment, or in the form

of rent payments, interest, divi-

Gends, or other source? A/>

(a) If the answer is yes, describe

each source of income and state

the amount received from each

Guring the past twelve months.

Do you own any cash or Py pee or

savings accounts? o

(a) If the answer is yes, state

the total value of the items

owned.

Do you own any real estate,

stocks, bonds, notes, automobiles,

or other valuable property (ex-

cluding ordinary household , fur-

nishings and clothing)? a

(a) If the answer is yes, describe

the property and state its ap-

proximate value.

5. List the persons who are dependent

upon you for support and state

your r tionship to those per-

sons. On?

I understand that a false statement or answer to my

question in this affidavit will subject me to penalties for

perjury.

A |

(| Ly 4,3

Jerome Edward Buie

Subscribed and sworn to before me, a Notary Public

this Ga day of ber 4 , 1989.

OTARY PUBLIC

My Commission Expires:

Let the applicant proceed without prepayment of

costs or fees or the necessity of giving security there-

fore.

JUSTICE

IN THE

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM, 1988

No. 88-1369

STATE OF MARYLAND,

Petitioner

Vv.

JEROME EDWARD BUIE,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Alan H. Murrell

Public Defender

Jonn L. Kopolow™

Assistant Public Defender

201 Saint Paul Place

Baltimore, Maryland 21202

(301) 333-2751

Counsel for Respondent

*counsel of Record

INDEX

TABLE OF CONTENTS

Page

Gee PRBS cs cece cccccccccccccceccceseeeeccceses coe A

STATEMENT OF THE CASE..... COOKE SEHSEHOSE EES EE OSES EEEOOSS l

Se CO Cea Tie WEEP cc cccccccc ees cessecesecececes 7

POC CORES COCO SEES EEHSOHEEEES SOOO SHOE OOS OEOCECS 13

TABLE OF CITATIONS

Cases

Arizona v. Hicks, 480 U.S. 321 (1987) ...ccccceccccccscce il

Buie v. State, 72 Md. App. 562, 531 A.2da 1290 (1987)..... 6

Chimel v. California, 394 U.S. 752 (1969).....ceeeeececes 9

Ker v. California, 374 U.S. 23 (1963) ......ccceeecseceees ll

Mincer v. Arizona, 437 U.S. 385 (1978)......ceeeeeees 11,12

New York v. Belton, 543 U.S. 454 (1981)..... ccc cece eccces 9

Payton v. New York, 445 U.S. 573 (1980)... cecevccvcves 10

Stackhouse v. State, 298 Md. 203, 468 A.2d 333 (1983).... 7

State v. Ranker, 343 So.2d 189 (La. 1977).....c.ccceecees ll

Steagald v. United States, 451 U.S. 204 (1981)........ 8,12

TOGEy GV. Gee, FES GeB. 1 (1GGB) cccccccccsccccscccccece 9,10

United States v. 577 F.2d 1147,

439 U.S. 850 (1978)........

United States v. 468 U.S. 705 (1984).

United States v. 456 U.S. CAGES dc ccccccces

Louisiana, 399 U.S. 30 (1970)

See eeeCce eco eae ee eee & &

QUESTION PRESENTED

Has the Fourth Amendment been violated where

police, after arresting a suspect on the main floor of his

house, enter and search his basement for the most general of

reasons -- to wit, “in case there was someone else in the

basement" and “to look around” -- and with no basis for

believing anyone else was in the basement?

enter the house to execute the warrant for his arrest.

IN THE (£.3).2 Shortly before entering, Detective Joseph Frolich

SUPREME COURT OF THE UNITED STATES obtained “particular knowledge” that Respondent would be

inside. (£.15). He explained (£.16):

SEPTEMBER TERM, 1988 A I had a secretary in my office call

No. 88-1369

STATE OF MARYLAND,

Petitioner

Vv.

JEROME EDWARD BUIE,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

The Respondent, by his attorney, John L. Kopolow,

Assistant Public Defender, requests that the petition for

writ of certiorari be denied.

ST»iEMENT OF THE CASE

The following facts and quotations from the record

elucidate the summary of facts as set forth in the petition

for writ of certiorari.

Prince George's County Police Corporal James Rozar

testified that Respondent's house had been under police

surveillance “for about three days” when they decided to

his residence and ask to speak to him.

Q And who answered the phone?

A I don't know who answered the

phone. But, I think it was a female and

then she had a conversation with Mr. Buie.

Q So you knew there was a girl and a

man there in the house?

A Yes, sir.

Frolich saw “two young girls” sitting in front of the house

as he approached. (£.15).

Inside the house Rozar took resporsibility for

securing the basement. (E.3). After yelling twice for

anyone down there to come out, he heard a voice ask, “who is

it?" (E£.4). He said three times, “this is the police.” As

instructed, Respondent showed Rozar his hancs nd then

ascended the stairs. Rozar placed him against the wall,

searched and handcuffed him. (E.4). He saw no need to

search the area around Respondent. To the question: “You

weren't worried about there being any danger or anything

like that?”, Rozar replied, “No.” (£E.8).

Detective Frolich explained his observations,

actions, and motivations as follows (E.11-14):

lReferences to the record are explained at Pet. 4, n.l.

February 3,

Q Detective Frolich, did, at any

time, you have a search warrant to search

that premises?

A No, sir.

Q No warrant was ever requested?

7 No, sir.

Q You say the arrest ppyeent was

iss’ 2d on the 3rd of February?

A Yes, sir.

Detective, when you were at the house,

there were approximately five or six other

officers there as well?

A Yes, sir.

Q Did any of them have that warrant

with them at the time?

A I had this warrant with me.

Q You had the warrant with you?

A Yes, sir.

Q And when did you first see Officer

Rozar arresting Mr. Buie? Where had you

been and how did you happen to come there?

A I was standing next to him when he

called into the basement and, Mr. Buie

came up out of the basement.

Q So you hadn't gone upstairs or

hadn't searched any other part of the

residence?

A Wo, sir.

Q What had you been doing since you

had been there?

2mhe Godfather's Pizza restaurant was robbed at

1986. The police entered Respondent's home at

about 3:00 p-m. on February 5, 1986. (E.5).

noon on

A We had just -- Officer Rozar and

myself had arrived at the same time and

had just entered the residence.

Q You arrived in separate cars and

went in together?

A Yes, sir.

Q And you heard him say that he was

going to freeze the basement, as they say?

I believe that is the words that he said

or, secure the basement?

A Yes, sir.

Q And you were also there when Mr.

Buie showed Officer Rozar his hands, from

— bottom of the steps, as requested to

A I couldn't see that.

Q Do you remember the officer re-

questing that he show him his hands?

A I don't recall.

Q But, in any event, Mr.. Buie came

out and came up the steps?

A Yes, sir.

Q Now, this stairway leads downstairs

from a hallway on the main floor of the

house? .

A Yes, sir.

Q All right. Mr. Buie came up out of

there and then was put against the wall in

the hallway?

A Yes, sir.

Q Was anything else in the hallway,

any furniture or anything of that nature?

A There could have been.

Q@ You observed the officer search Mr.

Buie?

A Yes, sir.

Q And did he find anything on him?

A I don't recall.

Q And you observed the officer hand-

cuff Mr. Buie?

A Yes, sir.

Q And then place him under arrest?

A Yes, sir.

Q What did the officer do with Mr.

Buie at that point?

A I don't know

Q Took him out, whatever. At this

point, you decided to go into the base-

ment?

A Yes, sir.

Q Did you know what you were looking

for?

A I just went down there in case

there was someone else in the basement.

Q You just went down there to see if

someone else was down there, to 100k

around?

A Yes, sir.

Attempting to justify the plain view seizure of the

running suit, the prosecutor argued that the police went

“down there to look around the basement to make sure that no

one else is there, for their own protection, to check it “ut

and then in plain view they don't open any drawers, they

don't hide anything, they just see evidence that they know

is part of the crime.” (E.19) The trial judge ruled

(E.29):

——

I think they had a right to search him

and I think they had a right to seize,

based on the facts of this case. The man

comes out from a basement, the police

don't know how many other people are down

there. He is charged with a serious

offense.

I think the police acted reasonably in

this case and if they had gone back to get

@ warrant, that wouldn't have been there.

Accpggingly, the Motion to Suppress is

denied.

Respondent appealed to the Court of Special Appeals

of Maryland arguing that Detective Frolich had no right

under the Fourth Amendment to enter his basement after his

arrest. In its reply the State discarded its “protective

sweep” rationale:

The question presented here is

whether, when police arrest a suspect

inside a residence, officers may make a

cursory check of the premises to determine

if possible accomplices of the arrestee

are present.

Court of Special Appeals of Maryland, No. 100, September

Term, 1987, Brief of Appellee 2. That Court upheld the

search. Buie v. State, 72 Md. App. 562, 531 A.2d 1290

(1987), reproduced in Petitioner's Appendix (Apx. 46-81).

Sat midtrial the State was permitted to reopen the

suppression hearing in order to clarify Detective Frolich's

actions. He proceeded to testify that he entered the

basement looking specifically for Respondent's accomplice.

The reopening of the hearing violated the Maryland Rules of

Procedure. Consequently, in the Maryland Court of Appeals

and in the petition filed in this Court the State abandoned

all reliance upon the testimony presented at the

supplemental hearing. Pet. Apx. 7-8, 52-58.

Respondent petitioned the Court of Appeals of

Maryland for a writ of certiorari. In its Answer to Peti-

tion for Writ of Certiorari the State again framed the

Question Presented in terms of an officer's right “to make a

cursory check of the premises for the limited purpose of

determining whether the arrestee's accomplice is present[.]”

Court of Appeals of Maryland, No. 161, September Term, 1987,

Answer to Petition for Writ of Certiorari l. After the

Court of Appeals of Maryland granted the writ, the State in

separate sections of its brief asserted that Detective

Frolich went into Respondent's basement to make either a

“Search for Accomplices,” Court of Appeals of Maryland, No.

161, September Term, 1987, Brief of Appellee 6-11, or a

“Protective Search,” Id. at 11-19.

REASONS FOR DENYING THE WRIT

The State of Maryland ascribes any of three motives

tc Detective Frolich's entry and search of Appellant's

basement: officer safety, preservation of evidence, and

*prior to the filing of its petition the State did not at-

tempt to argue that its officers acted out of a desire to

preserve evidence. In the Maryland appellate courts the

State dismissed as inapplicable Stackhouse v. State, 298 Md.

203, 468 A.2d 333 (1983), wherein Appeals

rejected a claim that the presence of the defendant's sister

created an exigency that threatened destruction or removal

of evidence. Id. at 218-21. The State's position was that.

the Stac analysis did not pertain to this case because

here ° cer's concern was suspects, not evidence.

Court of Special Appeals of Maryland, No. 100, September

Term, 1987, Brief of Appellee 6-7; Court of — of

Maryland, No. 161, September Term, 1987, Brief of Appellee

16, nm. 7. Im addition, the State did not contest the Court

of Special Appeals’ finding that Detective Frolich “had no

reason to fear the imminent destruction of evidence." Pet.

Apx. 64. Having failed to raise this particular factual

apprehension of Respondent's alleged accomplice. Pet.

11-13. It asks the Court to use this case to resolve a

conflict among federal circuit courts as to the degree of

justification needed to legitimize a dwelling house search

undertaken for any of these purposes. Its review of the

cases finds that some courts require exigent circumstances

and probable cause, others require a reasonable, articulable

belief, and one takes a totality-of-the-circumstances ap-

proach. Pet. 13-16.

This case is not an effective vehicle for determin-

ing the general validity of such residential searches or

resolving the apparent conflict over the standard of proof

because the record does not demonstrate that Detective

Frolich acted on any of the rationales now being proposed by

the State. He never articulated even one of them. He said

only that he conducted the search “in case there was someone

else in the basement” and “to look around.” (£.14).

The vagueness of the detective's reasons has left

the State groping for a theory that would support the

search. Its initial claim that police protection was the

objective was abandoned in favor of a search-for-accomplice

rationale. The State now takes a multiple choice approach

and, in effect, asks this Court to make a selection that

contention in the courts below, having indeed made contrary

assertions, and having acquiesced in the Court of Special

ls' contrary finding, the State has lost its right to

Appea

raise it before this Court. Steagald v. United States, 451

u.Ss. 204, 209 (1981).

will sustain the search and seizure. Review by this Court is

hardly appropriate where the record of the case is so defi-

cient that the Petitioner must rely om the Court to find a

legitimate basis for its officer's actions.

In addition, because the justifications offered by

Detective Frolich were virtually all-inclusive, his testi-

mony was consistent with patently impermissible objectives,

e.g-., finding evidence of the robbery or other crimes, or

finding any criminal suspects who happen to have been in

Respondent's company. But “‘the scope of [a] search must be

“strictly tied “to and justified by” the circumstances which

rendered its initiation permissible.'" Chimel v. Califor-

nia, 394 U.S. 752. 762 (1969). guoting Terry v- Ohio, 392

U. 1, 19 (1968). Also see New York v. Belton, 453 U-S.-

454, 457 (1961). Under “the basic rule of Fourth Amendment

jurisprudence,” that warrantless searches are per se unrea-

sonable unless shown to come within a specifically estab-

lished and well-delineated exception, United States v- Ross,

456 U.S. 798, 824-25 (1962), the State was obliged to negate

the constitutionally impermissible possibilities with con-

crete evidence rather than appellate supposition.

Even if Detective Frolich had articulated one of

the justifications now proposed, the entry of the basement

would not have been reasonable under any of the standards

adopted by the federal circuit courts. Under the least

stringent Fourth Amendment standard, he was obliged to

“point to specific and articulable facts which, taken with

rational inferences from those facts, reasonably warrant[ed]

that intrusion." Terry v. Ohio, supra, at 21 (footnote

omitted) .> To justify action based upon a fear for their

safety or a concern about the loss of evidence, the police

had to have some reason to believe that someone remained in

the basement who posed a threat to themselves or to evi-

dence. But despite a three-day surveillance of the house,

they were unable to say that anyone other than Respondent

and a girl (who was apparently outside the house when the

police entered) were present. Once inside, the officers did

mot hear or see anything to indicate that Respondent had

company in the basement. It must be concluded that Detec-

tive Frolich was acting on nothing more than the mere possi-

bility that another individual was in the house. That

possibility exists in every case.

There is no need for this Court to clarify the

circumstances that permit police to search a residence

whether to insure their safety, prevent the loss of evi-

dence, or apprehend an accomplice. In Payton v. New York,

445 U.S. 573, 589 (1980), the Court recognized that police

may need to check premises for safety reasons. If “(aj

>The totality-of-the-circumstances test supposedly adopted by

the Fourth Circuit in United States v. Baker, 577 F.2d 1147,

cert. denied, 439 u.S. 850 (1978), Pet. 13-14, is, at

bottom, the Terry standard. The officers who made a

“protective sweep" of a residence in that case testified

that they were afraid that there might be an armed

accomplice in the house and provided the court with the

specific information on which their fear was based. The

appellate court agreed that they had a reasonable fear

justifying the sweep. Id. at 1152.

search is a search, even if it happens to disclose nothing

but the bottom of a turntable,” Arizona v. Hicks, 480 U.S.

321, 325 (1987), then surely the entry of a room, which

exposes far more to the officer, qualifies as a Fourth

Amendment search as well. But all searches inside a home

without a warrant are presumptively unreasonable absent

exigent circumstances. United States v. Karo, 468 U.S. 705,

714-15 (1984). Thus, if the State sought to justify a

protective search, its burden was quite clear: it had to

demonstrate an exigency amounting to a serious threat of

imminent danger .®

The State's two “law enforcement" rationales are

also covered by existing case law. With respect to preser-

vation of evidence (a claim itself not preserved, see n.4,

supra), an exigency exists when police reasonably believe

the destruction of known evidence is in progress, Vale v.

Louisiana, 399 U.S. 30, 35 (1970), or imminent, Ker v.

California, 374 U.S. 23, 40 (1963). As in Mincey v. Ari-

zona, 437 U.S. 385, 394 (1978), there was in this case “no

indication that evidence would be lost, destroyed or removed

during the time required to obtain a search warrant." As

Snetective Frolich entered the basement after observing

Corporal Rozar complete the arrest of Respondent on the main

level. (E.13-14). In these circumstances the officers

could have insured their safety by removing Respondent from

the premises immediately. State v. Ranker, 343 So.2d 189,

195 (La. 1977). FProlich did not dispute that this may have

been precisely what Rozar did. (E.14). Also, he did not

testify that he entered the basement with a weapon drawn.

The record, in short, tends to refute police protection as

the motivation for the search

for the search for the accomplice, it is established that a

desire to execute an outstanding arrest warrant for one

individual does not in itself justify the warrantless search

of another's house. Steagald v. United States, 451 U.S. 204

(1981). If the police actually believed Respondent's accom-

plice was in his house and did not wish to obtain a warrant

to search it, they could simply have waited for the accom-

plice to leave the house. Id. at 221, n.14. In advancing

its law enforcement rationales, the State has apparently

forgotten that

the mere fact that law enforcement may be

made more efficient can never by itself

justify disregard of the Fourth Amendment.

The investigation of crime would always be

Simplified if warrants were unnecessary.

But the Fourth Amendment reflects the view

of those who wrote the Bill of Rights that

the privacy of a person's home anc prop-

erty may not be totally sacrificed in the

name of maximum simplicity in enforcement

of the criminal law.

Mincey v. Arizona, supra, at 393 (citations omitted).

CONCLUSION

The State's problem is that its proof completely

lacks essential components. Of the three reasons now as-

serted for Detective Frolich's action, the State proved

none. Moreover, each justification required at least a

reasonable basis for believing that someone was in the

basement with Qeapendent. But the State established no

basis at all for such a belief. According to Detective

Frolich's own rationale for the search, it was general and

exploratory in nature. A holding by this Court that such

residential searches are unreasonable would hardly advance

Fourth Amendment jurisprudence. The writ should be denied.

Respectfully submitted,

ly S¥ fb -

seen peng

sistant Public Defender

Appellate Division

201 Saint Paul Place

Baltimore, Maryland 21202

(301) 333-1993

Counsel for Respondent

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this _ day of May, 1989

a copy of the foregoing Brief In Opposition to Petition for

Writ of Certiorari was delivered to Gary E. Bair, Assistant

Attorney General, Office of the Attorney General, Munsey

Building, 7 North Calvert Street, Baltimore, Maryland

21202.

A A Soca,

ohn L. Ko Ow

Assistant Public Defender

JOINT

APPENDIX

Supreme Court, U.S,

FILED

JUL 20 1889

JOSEPH F. SPANIOL, JR.

No. 88-1369

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

STATE OF MARYLAND.

Petitioner.

JEROME EDWARD BUIE.

Re spondent

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

JOINT APPENDIX

J. Josepn CURRAN. JrR.. ALAN H. MURRELL.

Attorney General of Maryland Public Defencer of Maryland

GARY E. Bair,” JOHN L. KopoLow,*

Assistant Attorney Genera! Assistant Public Defender

Seven North Calvert Street 201 St. Paul Place

Munsey Building - Fourth Floor Baltimore, Maryland 21202

Baltimore, Maryland 21202 (301) 333-2751

(301) 576-6422

Counsel for Petitioner (‘ounsel for Respondent

*(Counsel of Record

PETITION FOR CERTIORARI FILED FEBRUARY 16, 1989

CERTIORARI GRANTED JUNE 5, 1989 y

JA-1

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

April 7, 1986—Indictment filed.

May 12, 1986—Defendant’s motion to suppress filed.

June 3, 1986—State’s answer to motion to suppress filed.

December 2, 1986—Defendant’s motion to suppress evi-

dence heard and denied; trial commenced.

December 3, 1986—Jury returns guilty verdicts for rob-

bery with a dangerous and deadly weapon and use of a

handgun in the commission of a felony.

December 30, 1986—Defendant sentenced to 20 years

for robbery with a dangerous and deadly weapon and 15

years consecutive for use of a handgun in the commission

of a felony.

January 16, 1987—Defendant’s notice of appeal filed.

October 9, 1987—Opinion and judgment of the Court of

Special Appeals of Maryland.

November 16, 1987—Defendant’s petition for writ of

certiorari filed.

January 12, 1988—Orcer of the Court of Appeals of

Maryland granting petition for writ of certiorari.

November 28, 1988—Opinion and judgment of the Court

of Appeals of Maryland.

JA-2

IN THE CIRCUIT COURT FOR

PRINCE GEORGE’S COUNTY, MARYLAND

Criminal Trials 86-504A

STATE OF MARYLAND,

vs.

JEROME EDWARD BUIE,

Defendant.

REPORTER’S OFFICIAL TRANSCRIPT

OF PROCEEDINGS

(Motions and Trial on the Merits)

VOLUME I of I

Courtroom No. 202

Upper Marlboro, Maryland

Tuesday, December 2, 1986

BEFORE:

HONORABLE JACOB S. LEVIN,

Associate Judge, and a jury

APPEARANCES:

For the State:

JOSEPH B. CHAZEN, ESQ.

For the Defendant:

JOHN F. SHAY, JR., ESQ.

JA-3

[2] 10:52 a.m.

PROCEEDINGS

[10] (The jury was excused from the courtroom.)

THE COURT: All right. Mr. Chazen, call your first wit-

ness.

MR. CHAZEN: The State would call Officer Rozar, Your

Honor.

MR. SHAY: At this point, I would ask for a rule on

witnesses.

THE COURT: All witnesses who are going to testify in

this matter, I would ask you to go outside. Go ahead.

JAMES T. ROZAR,

a witness produced on call of the State, having first been

[11] duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. CHAZEN:

Q State your name, please.

A Jim Rozar. ROZAR.

Q What is your employment?

A I am with the Prince George’s County Police, Special

Operations Division.

Q What rank are you, Officer?

A I am a Corporal.

Q And Corporal Rozar, how long have you been with

the County Police?

A Seven years in April.

Q And were you working as a police officer on February

5, 1986?

A Yes, sir.

JA-4

Q And as part of your duties, did there come a time

where you went to the 5400 block of Riverdale Road, 67th

Avenue, Riverdale, Maryland?

A Yes, sir.

Q And would you tell the judge, what brought you there?

A We had been working at surveillance for about three

days at that address and I was en route to work, I guess

it was about 3:00 o’clock, 3:15 and I heard over the police

[12] radio, officers responding to that address. So I decided

to go to that address and see exactly what was going on.

Q Now, corporal, what was the purpose of your sur-

veillance?

A We were trying to locate a suspect in a robbery and

obtain an arrest warrant for.

Q Do you know that suspect’s name?

A Jerome Buie.

Q Did there come a time when you actually went to the

house at 5400 67th Avenue?

A Yes, sir.

Q And when you got there, what did you find?

A When I got there I found two or three uniformed

officers outside the house and, the door to the house was

open and I could see officers inside the house. I went

inside the house and there were two detectives on the

main floor and Sergeant Dunn and uniformed—and a fe-

male uniformed officer starting up the stairs.

Q What did you do?

A I asked Sgt. Dunn if he had cleared the basement

and he said no, only the first floor. He said that he had

yelled down into the basement but got no response and

he was going down to check the upstairs and I told him

JA-5

that I would freeze the basement, which meant that I

would stand at the stairs coming out of the basement so

that if there were [13] someone in the basement they

couldn’t come up behind us.

Q Is that what you did?

A That is what I did.

Q And when you got to the basement, did you say or

do anything at that time?

A Yes, sir. I was at the top, I was on the first floor.

I didn’t go into the basement and |

volver out and was pointing down the stairs.

down to the basement for anyone down there

And I did that twice and finally I heard

And i

‘

“i

Pee ceE

aie

tees

- 23

28s

ian

alone and come up the stairs. He came up

put his hands where I could see them.

Q What did you do at that time?

A When he got to the top of the stairs I put him against

the wall and searched him and handcuffed him.

Q And did you place him under arrest?

A Yes, sir.

[14] Q That was pursuant to the warrant, as far as you

know?

A Yes, sir.

Q You didn’t search any other part of the house?

JA-6

A I didn’t search any part of the house at all.

MR. CHAZEN: No further questions of this witness,

Your Honor.

CROSS-EXAMINATION

BY MR. SHAY:

Q Corporal Rozar—is it?

A Yes, sir.

Q You were working out of surveillance of the house,

for a warrant that you had obtained?

A I had not obtained the warrant, no.

Q Who had obtained the warrant?

A Detective Frolich from the Robbery Squad.

Q And there was a warrant outstanding for this gentle-

man?

A Yes, sir.

Q And this was February 5?

A Yes, sir.

Q What time of day was it?

A Approximately between 3:00 o’clock and 3:30. I was

due to work at 4:00 o'clock.

Q In the afternoon”

[15] A Yes, sir.

Q You were on the way to work and you heard this

radio call so you decided to go over there?

A Yes, sir. It was in the same block. Same hundred

block that we had working surveillance for about three

days.

JA-7

Q By the time you got there, the house had pretty much

been secured, is that right?

A The house had been entered.

Q If I understood your testimony, there were two uni-

formed officers outside, that you could see?

A Yes, sir.

Q And then when you got in the house you saw two

detectives and two more uniformed officers?

A Yes, sir.

Q So there was six officers there altogether by the time

you got there?

A Two outside and four inside, as I recall.

Q Including you then, there were seven officers at the

house? All right. Let me get this straight. You went in

and asked if the basement had been cleared. They were

on the way upstairs?

A Yes, sir.

Q Was anybody else in the house? Was anybody, other

than the suspect, in the house?

A There was a female outside the house on the steps.

[16] Q When you got there?

A Yes, sir.

Q But no one else was in the house, that you saw?

A Not that I saw, no, sir.

Q So they start up the steps and you decide that you

are going to secure the basement?

A I asked Sgt. Dunn whether he had checked the base-

ment or not and he said they had not yet.

Q And you started calling down the basement and then

this man answers and says who is it?

JA-8

A Yes, sir

Q And then eventually he comes up and shows you his

hands?

A Yes, sir.

Q You were at the top of the stairway, is that right?

A That is right.

Q Where did the stairway lead out of, on the floor that

you were on in? Was it on the kitchen or hallway?

A It was in a hallway directly across, I believe, from

Q And he came up out of the basement into that hall-

way”?

A Yes, sir.

Q And you put him up against the wall in the hallway,

searched his person. Did you find anything on him?

A Not that I recall.

[17] Q He had no weapons?

A No, sir.

Q Nothing on him’

A No, sir.

Q How was he dressed?

A If I recall, he was wearing a sweatshirt and jeans.

Q And at that point, you arrested him?

A Yes, sir.

Q And you didn’t search any of the area around him?

A No, sir.

Q You didn’t see any need to do that?

JA-9

A Not at that point.

Q You weren’t worried about there being any danger

or anything like that?

A No.

MR. SHAY: That is all I have.

MR. CHAZEN: No further questions.

THE COURT: Thank you very much, Officer Rozar.

Call your next witness.

MR. CHAZEN: Detective Frolich, Your Honor.

JOSEPH W. FROLICH,

a witness produced on call of the State, having first been

duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. CHAZEN:

[18] Q State your full name, please.

A Joseph W. Frolich, Prince George’s County Police

Department, currently assigned to the Robbery Squad,

Forestville, Maryland.

Q And you're currently a detective, Detective Frolich?

A Yes, I am. -

Q And were you working in that capacity back in Feb-

ruary of this year, 19867

A Yes, sir, I was.

Q And did there come a time where you participated

in the investigation of an armed robbery of a Godfather’s

Pizza place?

A Yes, sir, I did.

JA-10

Q And did there come a time where you developed any

suspects in that case?

A Yes, sir.

Q And were any warrants obtained for anybody in that

case?

A Yes, sir.

Q And who were the warrants obtained for?

A Jerome Buie and a Lioyd Allen.

Q And concerning Mr. Buie, do you recall] what date

the warrant was obtained?

A February 3rd, 1986.

Q Did there come a time when in fact Mr. Buie was

[19] arrested?

A Yes, sir.

Q And were you present on the premises when the ar-

rest was made’

A Yes, sir.

. Q And do you remember what date that was?

A February 5, 1986.

Q What was the location of that arrest?

A 5400 67th Avenue, Riverdale.

Q Now, do you know which officer actually arrested Mr.

Buie’

A Officer Rozar.

Q And were you present when that took place?

A Yes, sir.

Q Okay. Did you see Officer Rozar place the handcuffs

on Mr. Buie?

JA-11

A Yes, sir, I did.

Q After that was done, did you take any action’

A Yes, sir, I did.

Q What did you do?

A I entered the basement of the residence where the

defendant Jerome Buie had exited.

Q And when you went down there, did you find any-

thing of importance to your case?

A A red running suit.

(20) Q And explain to the judge what importance that

had in the investigation, to you.

A It fitted the description from the victim Graham as

being a jumpsuit worn by one of the defendants.

Q And at that time, you took it?

A Yes, sir.

Q Did you take anything else from the basement?

A No, sir.

MR. CHAZEN: No further questions, Your Honor.

CROSS-EXAMINATION

BY MR. SHAY:

Q Detective Frolich, did, at any time, you have a search

warrant to search that premises’

A No, sir.

Q No warrant was ever requested’

A No, sir.

Q You say the arrest warrant was issued on the 3rd of

February’

JA-12

A Yes, sir.

Q Do you have a copy of that arrest warrant?

A Yes, sir.

[21] Detective, when you were at the house, there were

approximately five or six other officers there as well?

A Yes, sir. :

Q Did any of them have that warrant with them at the

time?

A I had this warrant with me.

Q You had the warrant with you’ ‘

A Yes, sir.

Q And when did you first see Officer Rozar

Mr. Buie? Where had you been and how did you happen

to come there?

A I was standing next to him when he called into the

basement and, Mr. Buie came up out of the basement.

Q So you hadn't gone upstairs or hadn't searched any

other part of the residence’

A No, sir.

Q What had you been doing since you had been there’

A We had just—Officer Rozar and myself had arrived

at the same time and had just entered the residence.

Q You arrived in separate cars and went in together’

A Yes, sir. |

the basement, as they say? I believe that is the

that he said or, secure the basement?

A Yes, sir.

Q And you also there Bue showed

Q Now, this stairway leads downstairs from a hallway

on the main floor of the house’

Q You observed the officer search Mr. Buie’

A Yes, sir.

Q And did he find anything on him’

A I don't recall.

Q And you observed the officer handcuff Mr. Buie’

JA-14

A Yes, sir.

[23] Q And then place him under arrest’

A Yes, sir.

Q What did the officer do with Mr. Buie at that point?

A I don't know.

Q Took him out, whatever. At this point, you decided

to go into the basement?

A Yes, sir.

Q Did you know what you were looking for?

A I just went down there im case there was someone

else ip. the basement.

Q You just went down there to see if someone else was

down there, to look around’

A Yes, sir.

MR. SHAY: That is all I have. Your Honor.

REDIRECT EXAMINATION

BY MR. CHAZEN:

Q Where, exactly, Detective Frolich, was the red jacket

or sweatsuit found’

A It was laying out im a drying position across a stack

of clothing.

Q It wasn't in any drawer, concealed in any way?

A No, sir.

THE COURT: It was out im the open’

THE WITNESS: Yes, sir.

[24] MR. CHAZEN: No further questions.

JA-15

RECROSS-EXAMINATION

BY MR. SHAY:

Q Do you remember a young girl sitting out front or

sitting out front when you came in?

A I think there were two young girls.

Q Did you speak to them at all?

A No, sir.

Q Did you have any reason to believe that anyone else

was in the house besides Mr. Buie?

A I had no idea who lived there.

Q How did you find out that he might be there at the

time?

MR. CHAZEN: Objection, Your Honor.

THE COURT: How did he find out he might be there

at the time?

MR. SHAY: Right. All I am getting is, how much

they knew to go there at the time.

THE COURT: Was this his home Address?

THE WITNESS: Yes, sir.

THE COURT: All right.

BY MR. SHAY:

Q But, was there any particular knowledge that allowed

you to know that he was home at that time? -

A Yes, sir.

[25] Q What was that?

A I had a secretary in my office call his residence and

ask to speak to him.

Q And who answered the phone?

JA-16

A I don’t know who answered the phone. But, I think

it was a female and then she had a conversation with Mr.

Buie.

Q So you knew there was a girl and a man there in

the house?

A Yes, sir.

MR. SHAY: That is all I have.

MR. CHAZEN: Nothing further, Your Honor.

THE COURT: Thank you, Detective Frolich.

Call your next witness.

MR. CHAZEN: That is it, Your Honor.

THE COURT: Do you have any witnesses?

MR. SHAY: I would like to be heard on the Motion.

THE COURT: Sure.

MR. SHAY: First of all, it is clear in this case that

there is no search warrant. The officers went to the house

armed with an arrest warrant only. And they went in there

to look for the person of Mr. Buie.

Your Honor, the case law is extremely clear on this

point and, in fact there is a case written by Judge Couch,

called Stackhouse vs. State, which was decided in 1983

and, the facts, Your Honor, are almost exactly like the

facts in [26] this case. These officers went in the house

with an arrest warrant to look for Mr. Buie. They found

him and they arrested him.

At that point, Your Honor, the law is clear, dating

back to the Chimel vs. California case, that when you're

in somebody’s residence, you don’t have a search warrant,

you are there to arrest him, once you arrest that person,

you have the right to search his person and you have the

right to search the area within his grasp or in his control.

JA-17

If there had been a desk in that hall, with a drawer

or anything like that, they could have searched that. If

there had been shelves in that hallway or anything of that

nature, they could have searched those shelves. Even after

he was handcuffed, the cases say, because he could maybe

lunge or something. But once he was arrested and the

officer said he had him under control, he was not worried

about there being any weapons or anything anywhere else,

that was the end of it. They had no right to go into any

other part of that house to search for anything.

If Your Honor would look at the Stackhouse case,

which is 468 A 2d 333, in that case, Your Honor, the

police came to the house, it was the exact same situation.

It was a supposed armed robbery. They came to the house,

there was a sister in the house. They searched around the

house for the person. They had a warrant only and

then finally [27] got to an attic and the officer stood

the bottom of the doorway to the attic and he yelled up

to the person to come out. The person didn’t come

right away so the officer went up into the attic a little

ways and shone his flashlight down into the room

told the person, I see you, come out where I can see you.

Exactly like this case. Eventually the person came out.

The officer backed down the steps of the attic, got him

into the hallway which leads up to the attic and searched

him and handcuffed him and arrested him. At that point,

the same officer, the same officer, not a different officer

as in this case, went up into the attic, shone his flashlight

around and found a gun that was the suspected weapon

used in the robbery. Found that gun. The Court of Appeals

stated in that situation, unequivocably, that in that situ-

him down in the hallway, they had the right to search

j have

only that area of the house. They did not the right

to go rummaging into other areas of the house, not even

the room where he had come out of, because the only

JA-19

JA-18

Accordingly, the Motion to Suppress is denied.

We will take a luncheon recess now.

(At 12:12 p.m. a luncheon recess was taken.)

yeait

Your Honor, this case could not be

with that case. I think it’s completely clear

dence, that that jumpsuit or whatever it is,

sseug Gaye tte

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SC 28eg885 RE S

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PETITIONER'S

BRIEF

No. 88-1369 ~ Gl); JUL 20 1989

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

STATE OF MARYLAND,

Petitioner.

Vv.

JEROME EDWARD BUIE.

Responden t.

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

BRIEF FOR PETITIONER

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

GARY E. BAIR*

MARY ELLEN BARBERA

ANN N. BOSSE

Assistant Attorneys General

Seven North Calvert Street

Munsey Building—Fourth Floor

Baltimore, Maryland 21202

(301) 576-6422

ALEXANDER WILLIAMS, JR.

State’s Attorney for

Prince George’s County, Maryland

Counsel for Petitioner

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Where police possess arrest warrants for an armed

robbery suspect and his accomplice, is it reasonable

under the Fourth Amendment for the officers, when

arresting the suspect in his home, to make a cursory

safety check of the premises to determine whether

the accomplice or other persons are present?

PARTIES

The caption contains the names of all the parties

below.

ill

TABLE OF CONTENTS

QUESTION PRESENTED 0.00000... .cccccccsccssescecescescceseeeees

PARTIES

SPSS SOHO SOHO OHSS OS HSH SOOO OOEEOO OSES SEES ESSE HEEEOEEE OEE E SEES SEESEESECESS

STATEMENT OF JURISDICTION oo..c.eccccccccccccecceceecee.

CONSTITUTIONAL PROVISION INVOLVED .............

STATEMENT OF THE CASE ..........cccccccccccscesesceseeseee,

SUMMARY OF ARGUMENT. ...........cccccccccsscscsscsecsecees,

WHERE POLICE POSSESS ARREST WARRANTS FOR

AN ARMED ROBBERY SUSPECT AND HIS AC-

COMPLICE, IT IS REASONABLE UNDER THE

FOURTH AMENDMENT FOR THE OFFICERS, WHEN

ARRESTING THE SUSPECT IN HIS HOME, TO MAKE

A CURSORY SAFETY CHECK OF THE PREMISES TO

DETERMINE WHETHER THE ACCOMPLICE OR

OTHER PERSONS ARE PRESENT ...0.......cccccccccsseseeeee,

A. Introduction: A security check is a reason-

able and essential component of an in-home

RPE ‘ Subtcdessineiasasesccoesteecnasesisteniuvusivencenecenceses

Under the general reasonableness analysis,

security checks are permissible whenever po-

lice execute an arrest warrant for an armed

robbery or other dangerous crime ..............

It is appropriate to use the general rea-

sonableness balancing test to evaluate se-

_ IESE aE

Officer safety and safety of others are

compelling governmental interests ..........

. The cursory security check is minimally

intrusive and, on balance, its impact on

privacy interests is outweighed by the

government’s paramount interest in police

aes Sea REA Sane

aonn nd &o

4. No objective justification is necessary to

conduct a cursory security check because

of the danger that inheres in an in-home

DITOR nccccccccccccccoscscesseccecccscsssccessceccoeevescoess

C. The limited search of Buie’s home falls within

the Terry doctrine, a well-recognized excep-

tion to the warrant and probable cause re-

quirements of the Fourth Amendment .......

D. Because the cursory security check was law-

ful Fourth Amendment conduct, the seizure

of the red running suit falls within the pur-

view of the plain view doctrine ...............+

COINCET ATION sesccccsssccsncsscscesesssccnsncosescsonnantoneseccessosscosvecs

TABLE OF AUTHORITIES

Cases: Page

Adams v. Williams, 407 U.S. 148 (1972) 0.0.0.0... 19

Arizona v. Hicks, 480 U.S. 321 (1987) ....... ee 21,30

Bell v. Wolfish, 441 U.S. 520 (1979) wo... 13,18,22

Brown v. State, 738 P.2d 1092 (Wyo. 1987) ......... 11

Buie v. State, 314 Md. 151, 550 A.2d 79 (1988)... 1,10

Buie v. State, 72 Md. App. 562, 531 A.2d 1290

GPUTE) -siimensvaliasebdisestiashilctetiisspstieahinteaniaehciaieiaeninedemaions ]

Cady v. Dombrowski, 413 U.S. 483 (1978) ............ 19

Chimel v. California, 395 U.S. 752 (1969) ......... 15,19,20

Commonwealth v. Curry, 343 Pa. Super. 400, 494

PB X_N Siero Crores mene 10

Commonwealth v. Elliott, 714 S.W.2d 494 (Ky. Ct.

BE SEUITD seinichidnsunnntcctsesnibeabasininiecingbeninbanesiaesinlincs 10

Commonwealth v. Walker, 370 Mass. 548, £50

N.E.2d 678, cert. denied, 429 U.S. 943

SITE -sebetuiadiesndsnissaeiaduhitadanpisansdandiaiaminigeeadaumaniibiadas 10

Coolidge v. New Hampshire, 403 U.S. 443 (1971) . 30

Delaware v. Prouse, 440 U.S. 648 (1979) .......000... 13

Donovan v. Dewey, 452 U.S. 594 (1981) 0.0... 18

Duxaway v. New York, 442 U.S. 200 (1979) ........ 23

Craham v. Connor, 490 U.S. __ , 109 S.Ct. 1865

STINT ‘dundeduaddedinnahasananbamiandmanianssnameindetionsedakees 28

Griffin v. Wisconsin, 483 U.S. 868 (1987) ......... 13,19,22

Holden v. State, 290 Ark. 458, 721 S.W.2d 614

SISUTEEY sinstietsesesbanininntensedeiaiansiatidaidandiabendamiedens tetnneaanias 10

INS v. Delgado, 466 U.S. 210 (1984) oo... 27

Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984) . 10

Maryland v. Garrison, 480 U.S. 79 (1987) .......0.... )

Maryland v. Macon, 472 U.S. 463 (1985) .......00..... 28

Michigan v. Clifford, 464 U.S. 287 (1984) .....00...... 18

Table of Authorities Continued

Page

Michigan v. Long, 463 U.S. 1032 (1983) ....... 18,19,26,27

Michigan v. Summers, 452 U.S. 692 (1981) ....... 18,24,25

Michigan v. Tyler, 436 U.S. 499 (1978) .......:eeee 18

Mincey v. Arizona, 437 U.S. 385 (1978) ...........0 9,18

National Treasury Employees Union v. Von Raab,

489 U.S. __, 109 S.Ct. 1384 (1989) .......... 13,19,22

New Jersey v. TL.O.. 469 U.S. 325 (1985) ........... 13,19

New York v. Belton, 453 U.S. 454 (1981) ............. 23

New York v. Burger, 482 U.S. 691 (1987) ............ 13,19

New York v. Quarles, 467 U.S. 649 (1984) ........... 18,23

Newton v. State, 378 So.2d 297 (Fla. App.), cert.

denied, 389 So.2d 1115 (Fla. 1980) ................ 10

Norman v. State, 302 So.2d 254 (Miss. 1974), cert.

denied, 421 U.S. 966 (1975) ................ccccssseeees 10

O'Connor v. Ortega, 480 U.S. 709 (1987) ..........+0+. 13,19

Owen v. State, 418 So.2d 214 (Ala. Crim. App.

ROD . aceisceciensscnsitcscccescsossecsenscsnsscssnsasssoseseseusesssece 10

_ Payton v. New York, 445 U.S. 573 (1980) ............ 8,20

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per

GEIUIIID cceccccnnsnccsccsccconsescrseccosessonessssscssosonsoesece 18,19,25

People v. Coffee, 107 Cal. App. 3d 28, 165 Cal. Rptr.

BD GD cciicitstitidiniciictnaninictancantniniimsainninnnsineiniens 10

People v. Free, 94 Ill. 2d 378, 447 N.E.2d 218, cert.

denied, 464 U.S. 865 (1983) NEAREST ewer 10

People v. Green, 103 A.D.2d 362, 480 N.Y.S.2d 220

"(1984) sienéaniiaudbailihinaimmamenaenativininesaanisumananeiantnn 10

People v. Olajos, 397 Mich. 629, 246 N.W.2d 828

UII snsccncntcctesssbensensesssiineenneinanseianpioninnianminienness 10

Pope v. State, 635 S.W.2d 815 (Tex. App. 1982) .. 10

Rodriquez v. State, 91 N.M. 700, 580 P.2d 126

CED TED acvsercscccescccosevvonensssosensoseescepescoosossonenesessnces 10

Table of Authorities Continued

Page

Skinner v. Railway Labor Executives’ Assoc., 489

USS. “109 S.Ct. 1402 (1989) ................. 12,13,22

South Debote v. Opperman, 428 U.S. 364 (1976) .. 18

State v. Brown, 289 S.C. 581, 347 S.E.2d 882

TUE eiieincinienasetetbintnatipblaciicaehcuaniidhibaiiadadiaanaieaenadieen ie 10

State v. Dayton, 535 S.W.2d 479 (Mo. App.

TE srciecnenennitenanasinnedinidiitentitimmanaennintbeadanies 10

State v. Guiden, 399 So.2d 194 (La. 1981), cert.

denied, 454 U.S. 1150 (1982) ..................000000-. 10

State v. Holland, 389 N.W.2d 375 (lowa 1986) ..... 10

State v. Huff, 220 Kan. 162, 551 P.2d 880

REESE Re eae OOo STEN ECE Pe Re TD 10

State v. Kelly, 718 P.2d 385 (Utah 1986) .............. 11

State v. McCleary, 116 Ariz. 244, 568 P.2d 1142

I dha iat cieaecelia lee a 10

State v. Monzu, 227 Neb. 902, 420 N.W.2d 726

IIIT sitcseeacenetesiindanaeiets beheaded aaa 10

State v. Scott, 176 Ga. App. 887, 339 S.E.2d 276

STITT ‘saisishisencnsiniescnniscicendetiahndendalieaiatacamaiteidiigeiatimssatbisemtinies 10

State v. Smith, 140 N.J. Super. 368, 356 A.2d 401

(1976), aff'd, 75 N.J. 8). 379 A.2d 1275

ID idatsininees saelealaaladiicnailapaiateatalaiata aria caste 10

State v. Super, 37 Or. App. 731, 588 P.2d 106

STI "iii indhdeh aia 10

State v. Taylor, 298 N.C. 405, 259 S.E.2d 502

SEITE "Ticibiablecihcchacintetitipcabhbinieticiedaaimanii blend escent 10

State v. Toliver, 5 Wash. App. 321, 487 P.2d 264

TID i eiiceeiclisictetineadadeialeasdiitatiniainialiclia cea aici Diaci cera 11

State v. Willis, 269 N.W.2d 355 (Minn. 1978) ...... 10

State v. Wilson, 687 S.W.2d 720 (Tenn. Crim. App.

1984), cert. denied, 472 U.S. 1030 (1985) ....... 10

Steagald v. United States, 451 U.S. 204 (1981) ..... 20

Terry v. Ohio, 392 U.S. 1 (1968) ..................00000. passim

Vili

Table of Authorities Continued

Page

Teras v. Brown, 460 U.S. 730 (1983) .......::ceeeeeees 30

United States v. Baker, 577 F.2d 1147 (4th Cir.),

cert. denied, 439 U.S. 850 (1978) ..........- 10,11,18

United States v. Blake, 484 F.2d 50 (8th Cir. 1973),

cert. denied, 417 U.S. 949 (1974) .....--..eeeeceee 10,18

United States v. Brignoni-Ponce, 422 U.S. 873

(1975) ....ccccccssessssscceeeeeeesensessessseesnenneerensesseenenenes 13,19

United States v. Carter, 522 F.2d 666 (D.C. Cir.

1975) .......essecccsecccsscecsesceeeeeeessesccessseeseeeeseseaeereres 10

United States v. Castillo, 866 F.2d 1071 (9th Cir.

1988) ........ccccessecccccssecceeeeeeeesscscesessseeeeesseesseeeeeees 1]

United States v. Escobar, 805 F.2d 68 (2d Cir.

ROD winscenscecccicecscssonnssovenevsmnsvvossasrestassensocconocosnse 918

United States v. Gardner, 627 F.2d 906 (9th Cir.

TGDBO) .....ccccccecserccerervosecsovesenscoeseenssonscssoosooosenses 10

United States v. Gerry, 845 F.2d 34 (1st Cir.

1988) .........ccccssecccrssceceeeessecssssscnesssereeeessseaesesres 911,17

United States v. Hatcher, 680 F.2d 438 (6th Cir.

BOOB) ...ccecesecccccsesssecocsosessccevensssosnevesnsssessouscoonsues 10

United States v. Hensley, 469 U.S. 221 (1985) ...... 18

United States v. Jones, 696 F.2d 479 (7th Cir. 1982),

cert. denied, 462 U.S. 1106 (1983) ............:000 4

United States v. Kolodziej, 706 F.2d 590 (5th Cir.

1983) ........cccccssscccecssssesereceesssssscenecsscereeeseesesconens 9,11

United States v. Mabry, 809 F.2d 671 (10th Cir.),

cert. denied, __ U.S. ___, 108 S.Ct. 33

(1987) .......cccerccssscssscsseeccnnersnsessssssssncssensennseenes 9,18

United States v. Martinez-Fuerte, 428 U.S. 543

(1976) ........secccsrccsssccserssersreresesersscssencssssnssenssenes 13,19

United States v. Montoya de Hernandez, 473 U.S.

531 (1985) .........scccccsrceerercssesccssecsssssssenreesners 12,13,22

United States v. Place, 462 U.S. 696 (1983) ....... 14,20,21

United States v. Sharpe, 470 U.S. 675 (1985) ....... 12

Table of Authorities Continued

Page

‘ited States v. Sokolow, 490 U.S. __ . 10

le ee a 27

United States v. Standridge, 810 F.2d 1034 (11th

Cir.) (per curiam), cert. denied, 481 U.S. 1072

UITTET -dnaninsisasaineneneisicnansnmaiapaaaanadambiadaietseecatss 918

United States v. United States District Court, 407

a A IIE eceaibiciiiieanin tie tenae ee 20

United States v. Velasquez, 626 F.2d 314 (3d Cir.

SUTINUE) | seintokoinansindncantbapenapisinenisiahaibnimannaemanaimmtssasend 10

United States v. Whitten, 706 F.2d 1000 (9th Cir.

1983), cert. denied, 465 U.S. 1100 (1984) ....... 18

Vale v. Louisiana, 399 U.S. 30 (1970) ........000cc. 20

Vance v. United States, 399 A.2d 52 (D.C. 1979) . 10

Warden v. Hayden, 387 U.S. 294 (1967) «0.0.0.0... 9,19

Washington v. Chrisman, 455 U.S. 1 (1982) ...... 14,18,25

Welsh v. Wisconsin, 466 U.S. 740 (1984) «00.00.0000... 25

Yi prtmocn tienda henna

Ybarra v. Illinois, 444 U.S. 85 (1979) .0.00 cee. 18

Constitutional Provision:

United States Constitution, Fourth Amendment .. passim

Statute:

I, as 2

Rule:

Supreme Court Rule 17.1(b) and (¢) ...........ccccecees. 2

Miscellaneous:

W. LaFave, Search and Seizure (2d ed. 1987) ...... 11

W. Ringel, Searches & Seizures, Arrests and C -

sions (2d ed. 1989) vaccinate Saunas _ 11

Table of Authorities Continued

} ne: Protecting

S The Protective Sweep Doctrine

i Officers From Attack by —

Other Than the Arrestee, 33 Cath. U.L. Rev.

Q5 (1983) ....--eceeeeeceereneerseees wees ee

‘ - Statman, The Protective owe ne:

ey Questions Regarding the ig to

of Searches Conducted Contemporaneousty Qs

an Arrest On or Near Prwate Premises,

Syracuse L. Rev. 973 (1979) ..-----seseeeerereeeereees

Page

_——_

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 88-1369

STATE OF MARYLAND,

Petitioner,

JEROME EDWARD BUIE.,

Respondent.

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland

is reported, Buie v. Staie, 314 Md. 151, 550 A.2d 79

(1988), and is reproduced in the petition for writ of

certiorari. (Cert. Pet. Apx. 1-45).

The opinion of the Court of Special Appeals of

Maryland is reported, Buie v. State, 72 Md. App. 562,

531 A.2d 1290 (1987), and is reproduced in the petition

for writ of certiorari. (Cert. Pet. Apx. 46-81).

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals of Maryland

reversing Respondent Jerome Edward Buie’s convic-

tions was filed on November 28, 1988. On January

18, 1989, Chief Justice Rehnquist ordered that the

time for filing the.petition for writ of certiorari be

extended to and including February 16, 1989. The

petition for writ of certiorari was filed on that date

and was granted on June 5, 1989.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1257(a) and Rules of this Court, Rule 17.1(b)

and (c).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shal] not be violated, and no Warrants shall

issue, but upon probable cause, supported by

Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons

or things to be seized.

STATEMENT OF THE CASE

On February 3, 1986, Detective Joseph Frolich of

the Prince George’s County Police Department ob-

tained a warrant for the arrest of Jerome Edward

Buie. (J.A. 9-10). Buie and Lloyd Allen, for whom the

police also obtained an arrest warrant, were suspected

of having robbed, at gunpoint, a Godfather’s Pizza

restaurant on February 3, 1986. (J.A. 9-10). Two days

later, on February 5, 1986, police arrested Buie in

his home and seized a red runnin

1 2 a g suit. (J.A. 10-11,

15). A victim of the robbery had said that one of the

robbers wore a red running suit. (J.A. 11).

A pre-trial hearing was held in the Circui

for Prince George’s County, Maryland, on aeane

2, 1986, pursuant to Buie’s motion to Suppress the

red running suit. (J.A. 1). Detective Frolich and an-

other member of the Prince George’s County Police

Department, Corporal James Rozar, were the only

witnesses. Both were called by the State, and their

combined testimony disclosed the following.

After the robbery occurred, the police began a sur-

veillance of Buie’s home in order to locate him (J.A

4). Before the arrest Warrant was executed a sec-

retary from Detective Frolich’s office telephoned

Buie’s residence to confirm that Buie was then there

(J.A. 15). A female answered, and the secretary spoke

with Buie. (J.A. 15-16). Frolich and five or six other

officers, including Corporal Rozar, then went to Buie’s

home. (J.A. 7, 12). It was around 3:30 in the after-

‘ At trial, the court allowed the State to r

| eopen the .

sion. hearing; additional testimony was chen fen Reames

Aaasoee (Tr. 12/3/86, at 24-31). At the conclusion of the hearing

the court again denied Buie’s motion to suppress the red running

noon; two young girls were on the steps outside of

the house. (J.A. 4, 6-7, 15).

When Rozar and Frolich entered the house at least

four police officers were in the process of securing

the premises. (J.A. 4, 12-13). Two detectives were on

the main floor and two officers, one of whom was

Sergeant Dunn, were on their way upstairs. (J.A. 4).

Buie had not yet been located. (J.A. 4-5). Dunn told

Rozar that he had secured the first floor but not the

basement. (J.A. 4). Dunn also said that he had “‘yelled

down into the basement,” but had not received a

response. (J.A. 4). Rozar agreed to ‘‘freeze’’ the base-

ment, so that “if there were someone in the basement

they couldn’t come up behind us.” (J.A. 4-5).

Rozar and Frolich proceeded to the hallway across

from the kitchen, and Rozar pointed his service re-

volver down the basement stairs, yelling twice for

anyone there to ascend. (J.A. 5, 8, 12-13). Rozar even-

tually heard a voice ask, ‘‘who is it?” (J.A. 5). Several

times Rozar identified himself as a policeman and said

‘show me your hands.” (J.A. 5). Rozar finally saw a

pair of hands come around the bottom of the stair-

well. (J.A. 5). He then instructed the person to come

into view. (J.A. 5). The person, who happened to be

Buie, did so, and Rozar ordered him to ascend the

stairs. (J.A. 5). When Buie stopped to pick up a pair

of sneakers, Rozar told him to leave the sneakers

alone. (J.A. 5). Buie then came up the stairs, and

Rozar arrested him. (J.A. 5).

Rozar handcuffed and searched Buie, but found no

weapon. (J.A. 5, 8). Rozar did not search the hall

area at the top of the stairs surrounding Buie because

he was not then “worried about there being any dan-

ger.’’ (J.A. 8-9). Frolich, however, who said he did

not know how many people were in the house, de-

scended the stairs “in case there was someone else

in the basement.”’ (J.A. 11, 14-15). In the basement

Frolich saw the red running suit and seized it. (J.A.

11). When asked where he found the running suit,

Frolich explained that it was not in a drawer or oth-

nrg concealed but was lying on a stack of clothing.

A. 14).

Seeking suppression of the running suit, Buie

claimed that once the police arrested him, they had

no authority to enter his basement without a search

warrant. (J.A. 16-18). The State argued that the po-

lice were entitled to conduct a cursory check of the

basement for persons in order to protect themselves.

(J.A. 18). The trial court denied Buie’s motion to sup-

press, saying (J.A. 19):

I think they had a right to search him and

I think they had a right to seize, based on

the facts of this case. The man comes out

from a basement, the police don’t know how

many other people are down there. He is

charged with a serious offense.

I think the police acted reasonably in this

case and if they had gone back to get a war-

rant, that wouldn’t have been there.

At trial, the State introduced the running suit into

evidence. (Tr. 12/3/86, at 48-49). On December 3,

1986, a jury found Buie guilty of robbery with a dan-

gerous and deadly weapon and use of a handgun in

the commission of a felony. (J.A. 1). On December

30, 1986, Buie was sentenced to a total of 35 years

in prison. (J.A. 1).

The Court of Special Appeals of Maryland affirmed

the judgment of the trial court. (Cert. Pet. Apx. 46-

81). The court found that Detective Frolich “went

into [Buie’s] basement to look for the suspected ac-

complice or anyone else who might pose a threat to

the officers on the scene.’ (Cert. Pet. Apx. 64). Ap-

plying a standard of reasonableness, and finding that

the police officers had reasonably suspected that

Buie’s accomplice was still at large, Maryland’s in-

termediate appellate court upheld the denial of Buie’s

motion to suppress. (Cert. Pet. Apx. 75-76).

The Court of Appeals of Maryland, in a four to

three decision, reversed Buie’s convictions. Analyzing

the police conduct in Buie’s home as a protective

sweep, which it viewed as encompassing a search for

accomplices or any other persons who might be hiding

on the premises, (Cert. Pet. Apx. 13), the majority

concluded: “{TJhe facts in this case simply do not

provide probable cause to support a reasonable belief

that an accomplice was in Buie’s home, that other

confederates might have been there, or that any other

serious and demonstrable potentiality for danger ex-

isted.”” (Cert. Pet. Apx. 36). The majority thus held

that the limited search of Buie’s basement and the

seizure of the red running suit ‘“‘were unconstitutional

because they violated rights established by the fourth

amendment to the United States Constitution.”’ (Cert.

Pet. Apx. 2).

The three dissenting judges balanced “the limited

nature of the intrusion, and the exigencies of the

situation,” and concluded that the protective sweep

was reasonable. (Cert. Pet. Apx. 44-45). In the dis-

senters’ view, “[flor the police to make a quick sweep

of the basement from which Buie had emerged was

reasonable, whether to check for the presence of the

accomplice who had so recently been involved with

Buie and an armed robbery, or to protect themselves

from others who might have been hiding with Buie.”’

(Cert. Pet. Apx. 44).

SUMMARY OF ARGUMENT

The protective check of a home during the execu-

tion of an arrest warrant is an essential component

df the arrest. Police must ascertain the presence of

third parties who could endanger the lives of officers

or innocent bystanders, or could be in danger them-

selves. Cursory safety checks have long been ap-

proved by the lower federal and state courts and,

whether viewed under the standard of “general rea-

sonableness”’ or as an exception to the warrant re-

quirement, are reasonable under the Fourth

Amendment.

Analyzed under the general reasonableness balanc-

ing test, the security check of an arrestee’s home is

proper because the compelling need to preserve lives,

both of police officers and other persons who may be

on the premises during the execution of an arrest

warrant, far outweighs the limited intrusion that oc-

curs when the safety check is conducted. And, inas-

much as every in-home arrest for a violent crime

presents a life-threatening situation, police should be

permitted to conduct a protective walk-through when-

ever they make such an arrest.

Alternatively, the security check of an arrestee’s

home falls within the ambit of the Terry doctrine, a

well-recognized exception to the Fourth Amendment’s

warrant and probable cause requirements. To conduct

a limited search of a home, police need only reason-

ably suspect that there exists a risk of danger to the

officers or others at the arrest scene. Here, the police

had the requisite articulable suspicion.

Whether analyzed under the genera! reasonableness

balancing test or under the Terry doctrine, Detective

Frolich’s cursory check of Buie’s basement for third

persons was lawful Fourth Amendment conduct.

When, in the course of that check, Detective Frolich

observed the red running suit, which he had probable

cause to believe was connected with the armed rob-

bery for which Buie was being arrested, he had a

right to seize it under the plain view doctrine.

ARGUMENT

WHERE POLICE POSSESS ARREST WARRANTS FOR AN

ARMED ROBBERY SUSPECT AND HIS ACCOMPLICE, IT

IS REASONABLE UNDER THE FOURTH AMENDMENT

FOR THE OFFICERS, WHEN ARRESTING THE SUSPECT

IN HIS HOME, TO MAKE A CURSORY SAFETY CHECK

OF THE PREMISES TO DETERMINE WHETHER THE AC-

COMPLICE OR OTHER PERSONS ARE PRESENT.

A. Introduction: A security check is a reasonable and

essential component of an in-home arrest.

The security check or “‘protective sweep” of a home

during an arrest, which contemplates a quick pass-

through of the premises to ascertain the presence of

third persons, is used by police to ensure their own

safety and that of others. This cursory security pro-

cedure must be available to law enforcement agencies

because the potential for violence exists whenever an

arrest is made in someone’s home.

Although this Court has yet to rule on the propriety

of cursory security checks, it has referred to these

limited searches on several occasions. In Payton v.

New York, 445 U.S. 578, 589 (1980), for example, the

Court noted that the execution of an arrest warrant

in the home might involve a limited protective search

“because the police may need to check the entire

premises for safety reasons.’’ In other cases, too,

opinions of the Court have spoken of safety checks

as though they are an acceptable practice. Maryland

v. Garrison, 480 U.S. 79, 101 (1987) (Blackmun, J.,

dissenting) (officers ‘‘should have realized the error

in the warrant from their initial security sweep’’);

Segura v. United States, 468 U.S. 796, 800-01 (1984)

(agents had conducted a “‘limited security check of

the apartment to ensure that no one else was there

who might pose a threat to their safety or destroy

evidence’); Warden v. Hayden, 387 U.S. 294, 298-99

(1967) (police in hot pursuit of a robber could conduct

a thorough search of house for persons and weapons

so as to ensure that the suspect “‘was the only man

present and that the police had control of all weapons

which could be used against them or to effect an

escape’). See also Mincey v. Arizona, 437 U.S. 385,

392-93 (1978) (security check conducted at murder

scene; subsequent exploratory search found to violate

the Fourth Amendment).

The issue, then, is not so much whether security

checks are reasonable under the Fourth Amendment,

but when they are reasonable. All twelve federal cir-

cuit courts of appeal* and at least thirty-three state

°E.g., United States v. Gerry, 845 F.2d 34 (lst Cir. 1988);

United States v. Standridge, 810 F.2d 1034 (11th Cir.) (per cur-

iam), cert. denied, 481 U.S. 1072 (1987); United States v. Mabry,

809 F.2d 671 (10th Cir.), cert. denied, __. U.S. ____ ,108 S.Ct.

33 (1987); United States v. Escobar, 805 F.2d 68 (2d Cir. 1986);

United States v. Kolodziej, 706 F.2d 590 (5th Cir. 1983); United

courts* have addressed these cursory security checks.

In the absence of a definitive decision by this Court,

States v. Jones, 696 F.2d 479 (7th Cir. 1982), cert. denied, 462

U.S. 1106 (1983); United States v. Hatcher, 680 F.2d 438 (6th

Cir. 1982); United States v. Gardner, 627 F.2d 906 (9th Cir.

1980); United States v. Velasquez, 626 F.2d 314 (3d Cir. 1980);

United States v. Baker, 577 F.2d 1147 (4th Cir.), cert. denied,

439 U.S. 850 (1978); United States v. Carter, 522 F.2d 666 (D.C.

Cir. 1975); United States v. Blake, 484 F.2d 50 (8th Cir. 1973),

cert. denied, 417 U.S. 949 (1974).

* E.g., Owen v. State, 418 So.2d 214 (Ala. Crim. App. 1982);

State v. McCleary, 116 Ariz. 244, 568 P.2d 1142 (1977); Holden

v. State, 290 Ark. 458, 721 S.W.2d 614 (1986); People v. Coffee,

107 Cal. App. 3d 28, 165 Cal. Rptr. 676 (1980); Vance v. United

States, 399 A.2d 52 (D.C. 1979); Newton v. State, 378 So.2d 297

(Fla. App.), cert. denied, 389 So.2d 1115 (Fla. 1980); State v.

Scott, 176 Ga. App. 887, 339 S.E.2d 276 (1985); People v. Free,

94 Ill. 2d 378, 447 N.E.2d 218, cert. denied, 464 U.S. 865 (1983);

Williams v. State, 397 N.E.2d 1088 (Ind. App. 1979); State v.

Holland, 389 N.W.2d 375 (lowa 1986); State v. Huff, 220 Kan.

162, 551 P.2d 880 (1976); Commonwealth v. Elliott, 714 S.W.2d

494 (Ky. Ct. App. 1986); State v. Guiden, 399 So.2d 194 (La.

1981), cert. denied, 454 U.S. 1150 (1982); Buie v. State, 314 Md.

151, 550 A.2d 79 (1988); Commonwealth v. Walker, 270 Mass.

548, 350 N.E.2d 678, cert. denied, 429 U.S. 943 (1976); People

v. Olajos, 397 Mich. 629, 246 N.W.2d 828 (1976); State v. Willis,

269 N.W.2d 355 (Minn. 1978); Norman v. State, 302 So.2d 254

(Miss. 1974), cert. denied, 421 U.S. 966 (1975); State v. Dayton,

535 S.W.2d 479 (Mo. App. 1976); State v. Monzu, 227 Neb. 902,

420 N.W.2d 726 (1988); Koza v. State, 100 Nev. 245, 681 P.2d

44 (1984); State v. Smith, 140 N.J. Super. 368, 356 A.2d 401

(1976), affd, 75 N.J. 81, 379 A.2d 1275 (1977); Rodriquez v.

State, 91 N.M. 700, 580 P.2d 126 (1978); People v. Green, 103

A.D.2d 362, 480 N.Y.S.2d 220 (1984); State v. Taylor, 298 N.C.

405, 259 S.E.2d 502 (1979); State v. Super, 37 Or. App. 731,

588 P.2d 106 (1978); Commonwealth v. Curry, 343 Pa. Super.

400, 494 A.2d 1146 (1985); State v. Brown, 289 S.C. 581, 347

S.E.2d 882 (1986); State v. Wilson, 687 S.W.2d 720 (Tenn. Crim.

App. 1984), cert. denied, 472 U.S. 1030 (1985); Pope v. State,

the lower courts have adopted a variety of analytical

approaches and have required varying levels of ob-

jective justification to uphold these quick and limited

searches. Some courts require articulable suspicion

that third parties are on the premises. E.g., United

States v. Castillo, 866 F.2d 1071, 1079 (9th Cir. 1988).

Other courts, like the dissenting members of the Court

of Appeals of Maryland in this case, consider the

totality of the circumstances, balancing the exigency

of the situation against the limited nature of the in-

trusion. E.g., United States v. Baker, 577 F.2d 1147,

1152 (4th Cir.), cert. denied, 439 U.S. 850 (1978). Still

other courts, like the majority in this case, insist that

the police have probable cause to believe that third

parties are present before allowing them to check the

entire house. E.g., United States v. Gerry, 845 F.2d

34, 36-37 & n.1 (1st Cir. 1988}; United States v. Ko-

lodziej, 706 F.2d 590, 597 (5th Cir. 1983).4 However

diverse their approaches and standards are, the lower

court decisions reinforce the premise that security

checks are reasonable and that the real issue is under

what circumstances police may conduct these checks.

635 S.W.2d 815 (Tex. App. 1982); State v. Kelly, 718 P.2d 385

(Utah 1986); State v. Toliver, 5 Wash. App. 321, 487 P.2d 264

(1971); Brown v. State, 738 P.2d 1092 (Wyo. 1987).

‘Various commentators have caialogued and analyzed these

and other lower court approaches to security checks. E.g., 2 W.

LaFave, Search and Seizure §6.4 (2d ed. 1987); 1 W. Ringel,

Searches & Seizures, Arrests and Confessions §12.6(a) (2d ed.

1989); Joseph, The Protective Sweep Doctrine: Protecting Ar-

resting Officers From Attack by Persons Oiher Than the Arrestee,

33 Cath. U.L. Rev. 95 (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 (1979).

—Security checks are most appropriately analyzed

either under the general reasonableness balancing test

or under the Terry stop and frisk exception to the

Fourth Amendment's warrant and probable cause re-

quirements. Regardless of which approach is used, the

same conclusion obtains: cursory security checks are

reasonable police conduct undér the Fourth Amend-

ment and evidence found in plain view during these

checks can lawfully be seized.

B. Under the general reasonableness analysis, security

checks are permissible whenever police execute an

arrest warrant for an armed robbery or other dan-

gerous crime.

1. It is appropriate to use the general reasonableness bal-

ancing test to evaluate security checks.

Security checks, though limited intrusions on per-

sonal privacy, are nonetheless “‘searches’’ within the

meaning of the Fourth Amendment. But, ‘“‘!t]o hold

that the Fourth Amendment is applicabie ... is only

to begin the inquiry into the standards governing”’

the protective check. Skinner v. Railway Labor Exr-

ecutives’ Assoc., 489 U.S. , 109 S.Ct. 1402, 1413-

14 (1989). As this Court has stated: ‘“‘The Fourth

Amendment is not, of course, a guarantee against all

searches and seizures, but only against unreasonable

searches and seizures.’’ United States v. Sharpe, 470

U.S. 675, 682 (1985) (emphasis in original). Reason-

ableness is a measure of both the circumstances sur-

rounding the intrusion and the nature of the intrusion

itself. United States v. Montoya de Hernandez, 473

U.S. 531, 537 (1985). Whether a particular practice

is permissible is determined “‘by balancing its intru-

sion on the individual’s Fourth Amendment interests

against its promotion of legitimate governmental in-

terests.”"” Delaware v. Prouse, 440 U.S. 648, 654

(1979). While in most criminal cases a police practice

is reasonable only if conducted with a warrant and

probable cause, those requirements will yield when

compelling needs render them impracticable. Skinner,

109 S.Ct. at 1414.

Terry v. Ohio, 392 U.S. 1 (1968), represents this

Court's first use of the balancing test in a criminal

case to uphold a warrantless search based on less

than probable cause. In the two decades that have

followed, this Court has repeatedly used the balancing

approach to authorize governmental intrusions on less

than probable cause. E.g., Uni..d States v. Brignoni-

Ponce, 422 U.S. 873 (1975) (vehicle stop in areas near

the Mexican border); United States v. Martinez-Fuerte,

428 U.S. 543 (1976) (routine vehicle stop at border

checkpoint); Bell v. Wolfish, 441 U.S. 520 (1979) (body

cavity search of prisoners); New Jersey v. T.L.O., 469

U.S. 325 (1985) (search of student by school officials);

United States v. Montoya de Hernandez, 473 U.S. 531

(1985) (16-hour detention of person at border); O’Con-

nor v. Ortega, 480 U.S. 709 (1987) (employer search

of employee's office); New York v. Burger, 482 U.S.

691 (1987) (administrative inspection of automobile

junkyard); Griffin v. Wisconsin, 483 U.S. 868 (1987)

(probation officer’s search of probationer’s home); Na-

tional Treasury Employees Union v. Von Raab, 489

U.S. __ , 109 S.Ct. 1384 (1989) (drug testing of cus-

toms service employees); Skinner v. Railway Labor

Executives’ Assoc., 489 U.S.__, 109 S.Ct. 1402

(1989) (drug testing of railroad employees). In each

of these cases, a special governmental need was bal-

anced against, and found to outweigh, the intrusion

occasioned by the governmental conduct.- While a

number of these later cases involve administrative, as

opposed to law enforcement, interests, Terry itself

stands as a redoubtable reminder that use of the bal-

ancing approach is appropriate in criminal cases where

officer safety is at issue. Indeed, in United States v.

Place, 462 U.S. 696, 703-04 (1983), this Court noted

that even a generalized interest in law enforcement

can justify an intrusion based on less than probable

cause.

Officer safety and the safety of others, the very

needs which prompted this Court to use the balancing

approach in Jerry, bespeak the use of that approach

in the security check context. “Every arrest must be

presumed to present a risk of danger to the arresting

officer,”’ Washington v. Chrisman, 455 U:S. 1, 7

(1982), which can escalate when third persons are at

the arrest scene. This is especially true when the

arrest is for a violent crime. Weighed against the

government's interest in ensuring the safety of its

agents and the public is the brief and limited intrusion

that comprises the security check for third persons

in an arrestee’s home. Inasmuch as the governmental

interest in preserving lives is, without a doubt, as

compelling an interest as one can envision, it cannot

yield to the minimal intrusion of the home that at-

tends a cursory security check. Furthermore, because

the police are acting in a situation that requires swift

and immediate conduct, they need a single, workable

rule when confronting the dangers inherent in an in-

home arrest. Accordingly, they should be allowed to

secure the premises whenever they execute an arrest

warrant in the home for a violent crime such as armed

robbery.

2. Officer safety and safety of others are compelling gov-

ernmental interests.

In Chimel v. California, 395 U.S. 752 (1969), this

Court defined the area in which police can act to

neutralize the danger posed by the arrestee. Chimel

recognizes and addresses only part of the risk that

inheres in an in-home arrest. Other persons at the

arrest scene can pose an equally grave threat of viol-

ence. Indeed, persons who remain undetected can ex-

ploit their anonymity to escalate a situation already

fraught with danger.

For two distinct safety-related reasons, the police

need to ascertain the presence of third persons at the

scene of an in-home arrest. At any time while the

officers are at the arrest scene, third persons can

intervene to aid the arrestee or otherwise thwart the

arrest. Additionally, innocent bystanders can be in-

jured if a violent confrontation erupts. Review of but

a few examples demonstrates the myriad of life-

threatening situations that can flow from an in-home

arrest when third persons are present. An incensed

spouse of the arrestee might attempt to interfere with

the arrest. A small child, unaware that a parent is

being arrested, might wander onto the scene and cre-

ate a perilous distraction. An accomplice, lurking in

another room, might take someone hostage or attack

the officers or the arrestee as they are leaving the

premises.

The facts of this case illustrate why all armed rob-

bery arrests are inherently dangerous and why that

danger does not dissipate until the officers and the

arrestee have left the arrest scene. When the police

arrived at Buie’s home, they had probable cause to

believe that just two days earlier Buie and Lloyd

Allen had perpetrated a robbery at gunpoint. Allen

had not yet been arrested. A telephone call to Buie’s

residence shortly before the officers’ arrival] had been

answered by an unidentified female. Two young girls

were sitting just outside Buie’s front door.

Knowing all of this, and armed with an arrest war-

rant, the six officers who entered Buie’s house im-

mediately fanned out to secure the premises and

search for Buie. Two officers went upstairs; two of-

ficers checked the main floor; and two officers, Rozar

and Frolich, went to the top of the basement stairs

and “froze” that area. Corporal Rozar made repeated

demands for anyone in the basement to come forward.

After initially ignoring Rozar’s commands, Buie fi-

nally emerged from the basement. He was arrested

and searched at the top of the stairs. No weapon was

found.

Following Buie’s arrest, Detective Frolich imme-

diately completed the security check of the house by

entering the basement to see

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