Buie v. State

580 A.2d 167, 320 Md. 696, 1990 Md. LEXIS 158

• Court: Court of Appeals of Maryland
• Decided: October 9, 1990
• Docket: 161, September Term, 1987
• Status: Published

Opinions

McAULIFFE, Judge.

In Buie v. State, 314 Md. 151, 550 A.2d 79 (1988), this Court held that a warrantless “protective sweep” of the basement of a dwelling house violated rights secured by the Fourth Amendment to the United States Constitution because the police did not have probable cause to believe, that there existed exigent circumstances sufficient to support the search. In Maryland v. Buie, 494 U.S.-, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court of the United States held that probable cause is not required to justify a. warrantless protective sweep of a dwelling, at least where entry has been gained lawfully. The Supreme Court defined a' protective sweep as

a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others.

Id., 110 S.Ct. at 1094. Such a search, the Court explained, “is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id.

The Supreme Court rejected the State’s argument for a “bright-line rule” that police should be permitted to conduct a protective sweep whenever they make an in-home arrest for a violent crime. Recognizing that a person retains an expectation of privacy in the remaining areas of his home even after the police have validly gained entry and have arrested him, the Court declined to authorize an “automatic” protective sweep. It did, however, consider the potential risk to police officers that might result from an in-house arrest. Comparing the circumstances confronting the police in the instant case with the circumstances existing in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Court said:

[T]here is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point-of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

Maryland v. Buie, 110 S.Ct. at 1098. Balancing the competing interests, the Court held that a protective sweep following a lawful in-house arrest is permitted

when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.

110 S.Ct. at 1099.

Applying the standard established by the Supreme Court, we consider the facts presented by the testimony and contained in the record at the time of the suppression hearing which preceded Buie’s trial. Brooks v. State, 320 Md. 516, 578 A.2d 783 (1990); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987).

Buie was arrested on the first floor of his home. Promptly after Buie’s arrest, Detective Joseph Frohlich entered the basement, from whence Buie had emerged just prior to his arrest, “in case there was someone else in the basement.” While walking through the basement, Frohlich noticed a red running suit that fit the description of a jumpsuit worn by one of the robbers. He seized it, and it was used against Buie at trial. It is not disputed that if Frohlich’s entry into the basement was lawful, the seizure of the red running suit, which was in plain view and which the officer had probable cause to believe was evidence of a crime, was also lawful under the Fourth Amendment. Maryland v. Buie, 110 S.Ct. at 1096; Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987).

The question, then, is whether the police were entitled to conduct a cursory inspection of the basement of Buie’s home. The answer depends upon whether the facts known to the police, and the inferences fairly deducible therefrom, support a reasonable suspicion that the house harbored a person who posed a danger to those on the arrest scene. In considering this question, we must first determine whether the presence of “reasonable suspicion” must be tested from the view of the particular police officers involved, or from the view of a reasonable police officer under the same circumstances, or a combination of the two. Buie argues the State must show that the officers had a subjective belief that there was a dangerous individual in the basement, and that this belief must have been objectively reasonable. The State insists an objectively reasonable belief is sufficient.

From the Supreme Court’s Buie, it is not easy to tell whether the established standard is subjective or objective. In the opening paragraph of its opinion the Court concludes “that the Fourth Amendment would permit the protective sweep undertaken here if the searching officer ‘possesse[d] a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]” the officer in believing’ ... that the area swept harbored an individual posing a danger to the officer or others.” 110 S.Ct. at 1095. (Citation omitted; emphasis supplied.) The language quoted by the Court is from Long and Terry, and it appears to require that the searching officer actually possess a belief that is reasonable. Id. The penultimate sentence of the opinion contains similar language:

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. (Emphasis supplied.)

110 S.Ct. at 1099-1100.

On the other hand, elsewhere the Court states its holding thus:

There must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. (Emphasis supplied.)

110 S.Ct. at 1098. This passage seems to point to an objective standard.

Although Long and Terry contain language that refers to the belief of the police officer, each case employs the same test:

The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Long, 463 U.S. at 1050, 103 S.Ct. at 3481, quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

Buie cites Stackhouse v. State, 298 Md. 203, 468 A.2d 333 (1983), to bolster his argument. It appears to do so. In that case the State argued that a sweep was justified because Stackhouse’s sister was on the premises. We observed that “in determining the lawfulness of the search we may concern ourselves only with what the police officers believed at the time.” Id. at 220, 468 A.2d at 342. And we noted “that at the time of the search ... the officers [did not] believe [] that the sister presented a threat of the destruction of evidence.” Id. See also Simpler v. State, 318 Md. 311, 316-20, 568 A.2d 22 (1990) and cases there cited. Much of the language in Simpler suggests that a subjective standard is being applied.

Other cases, however, indicate that an objective standard should be used in Fourth Amendment situations. In Maryland v. Macon, the Supreme Court stated:

Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” Scott v. United States, 436 U.S. 128, 136 [, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168] (1978), and not on the officer’s actual state of mind at the time the challenged action was taken.

472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985). In Scott, the Court commented “that the fact that the officer does not have the state of mind which is [hypothesized] by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” 436 U.S. at 138, 98 S.Ct. at 1723. And this Term, Justice Stevens, writing for the Court in Horton v. California, 495 U.S. -, 110 S.Ct. 2301, 2308-09, 110 L.Ed.2d 112 (1990), stated that

evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by ... a valid exception to the warrant requirement.

The Supreme Court has expressed similar sentiments in other Fourth Amendment cases. See, e.g., Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989) (“As in other Fourth Amendment contexts ... the ‘reasonableness’ inquiry in an excessive force case is an objective one____”); Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (objective standards used to determine whether reasonable person, in view of circumstances, would have believed he or she was free to leave). See also Herod v. State, 311 Md. 288, 299, 534 A.2d 362 (1987) (officer’s subjective legal interpretation of basis for warrantless search is not controlling).

We conclude that in determining the existence of reasonable suspicion in a case such as this, the objective standard must be used.¹ The Supreme Court in this case spoke specifically of the use of an objective standard when it said “[t]his is no more and no less than was required in Terry and Long____” Maryland v. Buie, 110 S.Ct. at 1098. The experience and training of the particular police officers involved will form a part of the matrix of facts that define the circumstances which must be considered, but the test is whether a reasonably prudent police officer, under those circumstances, is justified in forming a reasonable suspicion that the house is harboring a person posing danger to those on the arrest scene. 110 S.Ct. at 1099.

Applying that standard to the facts of this case, we hold that the limited search of the basement was lawful.

The police went into Buie’s home to arrest him for the perpetration of a dangerous felony — armed robbery — which had been committed within the preceding 48 hours. The victim of the robbery had promptly identified the perpetrators, and warrants for Buie and Allen were obtained on the day of the offense. The police placed Buie’s house under surveillance for two days, and it is a fair inference that they did not observe Buie or Allen during that time.²

Buie was arrested under circumstances that support a fair inference that he was hiding in the basement. Initial entry was made by at least four officers. One of them, Sergeant Dunn, yelled down into the basement, but received no response. When Corporal Rozar arrived, he assumed control of the interior entrance to the basement. Pointing his service revolver down the stairs, he “yelled down to the basement for anyone down there to come out.” He received no reply. He yelled again, and finally heard a voice in the basement inquire “who is it?” Corporal Rozar identified himself and ordered the person in the basement to show his hands. Apparently, there was no response to this command. Corporal Rozar had to repeat the command twice more before he “finally ... saw a pair of hands come around the bottom of the stairs.” Buie ascended the stairs at gunpoint and was immediately arrested, handcuffed, and searched. No weapon was found.

Detective Frolich was present at the top of the stairs and observed the arrest of Buie. Frolich then descended the stairs, “in case there was someone else in the basement.” There is no evidence in this record that Buie had been taken out of the house before Frolich entered the basement. Frolich’s testimony suggests his entry into the basement was immediate:

PROSECUTOR: And were you present when [the arrest of Buie] took place?

FROLICH: Yes, sir.

PROSECUTOR: Okay. Did you see Officer Rozar place the handcuffs on Mr. Buie?

FROLICH: Yes, sir, I did.

PROSECUTOR: After that was done, did you take any action?

FROLICH: Yes, sir, I did.

PROSECUTOR: What did you do?

FROLICH: I entered the basement of the residence where the defendant Jerome Buie had exited.

Detective Frolich was the original investigating officer in the armed robbery case. He reasonably believed that Buie and Allen had perpetrated the robbery. On the day of the offense, he had obtained warrants for the arrest of both of them. He had been looking for them during the two days that followed the robbery, and had placed Buie’s home under surveillance. When Buie was found in his home 48 hours after the robbery, and had not been seen to enter the home during the time it was under surveillance, Frolich was entitled to reasonably suspect that Buie had come to his home shortly after the robbery, and that he had been hiding out there ever since. Buie’s actions in the basement heightened the suspicion that he was in hiding. It was entirely reasonable, at that point, for Frolich to suspect that Allen might well have come to Buie’s house with him after the robbery, and might well be in the basement. Moreover, Frolich knew that Buie had used a gun in the robbery,³ and the gun had not been found when Buie was arrested.

The Supreme Court has said that “[t]he concept of reasonable suspicion, like probable cause, is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ ” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983).

Concerning the application of the more demanding standard of probable cause, the Supreme Court has said:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Certainly the same non-technical and practical approach should be taken when the lesser standard of reasonable suspicion is applicable.

Keeping in mind that the test is one of reasonable suspicion, and not of proof beyond a reasonable doubt or even of probable cause, and adopting a practical and non-technical approach, it seems clear that a prudent police officer in Frolich’s position could reasonably suspect that the basement harbored an individual who posed a danger to those on the arrest scene, and thus he was justified in conducting a cursory sweep of that area to neutralize the danger.

The Court of Special Appeals correctly affirmed the conviction below.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

CHASANOW, J., concurs in the result.

1 . We need not here consider whether proof by the defendant that an officer undertook a search in bad faith, i.e., believing he had no right to do so, would result in suppression of the fruits of a search that was objectively reasonable. There is no evidence of bad faith in this case. Rather, as we have noted, Frohlich testified that he went into the basement to see if someone else was there.

2 . The police testified that they learned Buie was at home through a pretext telephone call placed just prior to their entry.

3 . Detective Frolich completed the application for the statement of charges, which is a part of the record. His affidavit discloses that the robbery was at gunpoint, and that the gun was held by Buie.