U.S. Supreme Court Maryland v. Buie, 494
U.S. 325 (1990) Maryland v. Buie No. 88-1369 Argued Dec. 4, 1989 Decided Feb. 28, 1990 494
U.S. 325 CERTIORARI TO THE COURT OF APPEALS
OF MARYLAND Syllabus Following a Maryland armed robbery by two men, one of whom was
wearing a red running suit, police obtained arrest warrants for
respondent Buie and his suspected accomplice and executed the
warrant for Buie at his house. After Buie was arrested upon
emerging from the basement, one of the officers entered the
basement "in case there was someone else" there and seized a red
running suit lying in plain view. The trial court denied Buie's
motion to suppress the running suit, the suit was introduced into
evidence, and Buie was convicted of armed robbery and a weapons
offense. The intermediate appellate court affirmed the denial of
the suppression motion, but the State Court of Appeals reversed,
ruling that the running suit was inadmissible because the officer
who conducted the "protective sweep" of the basement did not have
probable cause to believe that a serious and demonstrable
potentiality for danger existed. Held: 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 Page 494 U. S. 326 facts that the area to be swept harbors an individual posing a
danger to those on the arrest scene. Michigan v. Long, 463 U. S. 1032 , 463 U. S.
1049 -1050; Terry v. Ohio, 392 U. S.
1 , 392 U. S. 21 . Pp. 494 U. S.
330 -337.

															(a) In holding that, respectively, an on-the-street "frisk" and
a roadside search of an automobile's passenger compartment were
reasonable despite the absence of a warrant or probable cause, Terry and Long balanced the Fourth Amendment
interests of the persons with whom they were dealing against the
immediate interests of the police in protecting themselves from the
danger posed by hidden weapons. Here, the police had an analogous
interest in taking steps to assure themselves that Buie's house was
not harboring other person's who were dangerous and who could
unexpectedly launch an attack, and the fact that Buie had an
expectation of privacy in rooms that were not examined by the
police prior to the arrest does not mean that such rooms were
immune from entry. No warrant was required, and as an incident to
the arrest the officers could, as a precautionary matter and
without probable cause or reasonable suspicion, look in closets and
other spaces immediately adjoining the place of arrest from which
an attack could be launched. Beyond that, however, just as in Terry and Long, 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. Such a
protective sweep is not a full search of the premises, but may
extend only to a cursory inspection of those spaces where a person
may be found. The sweep lasts no longer than is necessary to dispel
the reasonable suspicion of danger and in any event no longer than
it takes to complete the arrest and depart the premises. Pp. 494 U. S.
331 -336.

															(b) Chimel v. California, 395 U.
S. 752 -- which held that, in the absence of a search
warrant, the justifiable search incident to an in-home arrest could
not extend beyond the arrestee's person and the area from within
which he might have obtained a weapon -- is distinguished. First, Chimel was concerned with a full-blown, top-to-bottom
search of an entire house for evidence of the crime for which the
arrest was made, not the more limited intrusion contemplated by a
protective sweep. Second, the justification for the search incident
to arrest in Chimel was the threat posed by the arrestee,
not the safety threat posed by the house, or more properly by
unseen third parties in the house. P. 494 U. S.
336 .

															(c) The Court of Appeals applied an unnecessarily strict Fourth
Amendment standard in requiring a protective sweep to be justified
by probable cause. The case is remanded for application of the
proper standard. Pp. 494 U. S.
336 -337.

															314 Md. 151, 550 A.2d 79, vacated and remanded.

															WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BLACKMUN, STEVENS, O'CONNOR, SCALIA, and
KENNEDY, JJ., joined. STEVENS, J., post, p. 494 U. S. 337 ,
and KENNEDY, J., post, p. 494 U. S. 339 ,
filed concurring opinions. BRENNAN, J., filed a dissenting opinion,
in which MARSHALL, J., joined, post, p. 494 U. S.
339 . Page 494 U. S. 327 Justice WHITE delivered the opinion of the Court.

															A "protective sweep" is a quick and limited search of a
premises, incident to an arrest and conducted to protect the safety
of police officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person might be
hiding. In this case we must decide what level of justification is
required by the Fourth and Fourteenth Amendments before police
officers, while effecting the arrest of a suspect in his home
pursuant to an arrest warrant, may conduct a warrantless protective
sweep of all or part of the premises. The Court of Appeals of
Maryland held that a running suit seized in plain view during such
a protective sweep should have been suppressed at respondent's
armed robbery trial because the officer who conducted the sweep did
not have probable cause to believe that a serious and demonstrable
potentiality for danger existed. 314 Md. 151, 166, 550 A.2d 79, 86
(1988). We conclude 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," Michigan v. Long, 463 U. S. 1032 , 463 U. S.
1049 -1050 (1983) (quoting Terry v. Ohio, 392 U. S. 1 , 392 U. S. 21 (1968)), that the area swept harbored an individual posing a danger
to the officer or others. We accordingly Page 494 U. S. 328 vacate the judgment below and remand for application of this
standard. I On February 3, 1986, two men committed an armed robbery of a
Godfather's Pizza restaurant in Prince George's County, Maryland.
One of the robbers was wearing a red running suit. That same day,
Prince George's County police obtained arrest warrants for
respondent Jerome Edward Buie and his suspected accomplice in the
robbery, Lloyd Allen. Buie's house was placed under police
surveillance.

															On February 5, the police executed the arrest warrant for Buie.
They first had a police department secretary telephone Buie's house
to verify that he was home. The secretary spoke to a female first,
then to Buie himself. Six or seven officers proceeded to Buie's
house. Once inside, the officers fanned out through the first and
second floors. Corporal James Rozar announced that he would
"freeze" the basement so that no one could come up and surprise the
officers. With his service revolver drawn, Rozar twice shouted into
the basement, ordering anyone down there to come out. When a voice
asked who was calling, Rozar announced three times: "this is the
police, show me your hands." App. 5. Eventually, a pair of hands
appeared around the bottom of the stairwell and Buie emerged from
the basement. He was arrested, searched, and handcuffed by Rozar.
Thereafter, Detective Joseph Frolich entered the basement "in case
there was someone else" down there. Id. at 14. He noticed
a red running suit lying in plain view on a stack of clothing and
seized it.

															The trial court denied Buie's motion to suppress the running
suit, stating in part:

															"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." Id. at 19. The State introduced the running suit into
evidence at Buie's trial. A jury convicted Buie of robbery with a
deadly weapon and using a handgun in the commission of a
felony. Page 494 U. S. 329 The Court of Special Appeals of Maryland affirmed the trial
court's denial of the suppression motion. The court stated that
Detective Frolich did not go into the basement to search for
evidence, but to look for the suspected accomplice or anyone else
who might pose a threat to the officers on the scene. 72 Md.App.
562, 571-572, 531 A.2d 1290 , 1295 (1987).

															"Traditionally, the sanctity of a person's home -- his castle --
requires that the police may not invade it without a warrant except
under the most exigent of circumstances. But once the police are
lawfully within the home, their conduct is measured by a standard
of reasonableness. . . . [I]f 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." Id. at 575-576, 531 A.2d at 1297 (emphasis in
original).

															The Court of Appeals of Maryland reversed by a 4 to 3 vote. 314
Md. 151, 550 A.2d 79 (1988). The court acknowledged that

															"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 . . . ." id. at 159, 550 A.2d at 83. The court, however, stated
that when the sanctity of the home is involved, the exceptions to
the warrant requirement are few, and held: "[T]o justify a
protective sweep of a home, the government must show that there is
probable cause to believe that "a serious and demonstrable
potentiality for danger"' exists." Id. at 159-160, 550
A.2d at 83 (citation omitted). The court went on to find that the
State had not satisfied that probable-cause requirement. Id. at 165-166, 550 A.2d at 86. We granted certiorari, 490
U.S. 1097 (1989). Page 494 U. S. 330 II It is not disputed that until the point of Buie's arrest the
police had the right, based on the authority of the arrest warrant,
to search anywhere in the house that Buie might have been found,
including the basement.

															"If there is sufficient evidence of a citizen's participation in
a felony to persuade a judicial officer that his arrest is
justified, it is constitutionally reasonable to require him to open
his doors to the officers of the law." Payton v. New York, 445 U. S. 573 , 445 U. S.
602 -603 (1980). There is also no dispute that if
Detective Frolich'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. See Arizona v.
Hicks, 480 U. S. 321 , 480 U. S. 326 (1987). The issue in this case is what level of justification the
Fourth Amendment required before Detective Frolich could legally
enter the basement to see if someone else was there.

															Petitioner, the State of Maryland, argues that, under a general
reasonableness balancing test, police should be permitted to
conduct a protective sweep whenever they make an in-home arrest for
a violent crime. As an alternative to this suggested brightline
rule, the State contends that protective sweeps fall within the
ambit of the doctrine announced in Terry v. Ohio, 392 U. S. 1 (1968),
and that such sweeps may be conducted in conjunction with a valid
in-home arrest whenever the police reasonably suspect a risk of
danger to the officers or others at the arrest scene. The United
States, as amicus curiae, supporting the State, also
argues for a Terry -type standard of reasonable,
articulable suspicion of risk to the officer, and contends that
that standard is met here. Respondent argues that a protective
sweep may not be undertaken without a warrant unless the exigencies
of the situation render such warrantless search objectively
reasonable. According to Buie, because the State has shown neither
exigent circumstances to immediately enter Buie's house Page 494 U. S. 331 nor an unforeseen danger that arose once the officers were in
the house, there is no excuse for the failure to obtain a search
warrant to search for dangerous persons believed to be on the
premises. Buie further contends that, even if the warrant
requirement is inapplicable, there is no justification for relaxing
the probable-cause standard. If something less than probable cause
is sufficient, respondent argues that it is no less than
individualized suspicion -- specific, articulable facts supporting
a reasonable belief that there are persons on the premises who are
a threat to the officers. According to Buie, there were no such
specific, articulable facts to justify the search of his
basement. III It goes without saying that the Fourth Amendment bars only
unreasonable searches and seizures, Skinner v. Railway Labor
Executives' Assn., 489 U. S. 602 (1989). Our cases show that in determining reasonableness, we have
balanced the intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests. United States v. Villamonte-Marquez, 462 U. S. 579 , 462 U. S. 588 (1983); Delaware v. Prouse, 440 U.
S. 648 , 440 U. S. 654 (1979). Under this test, a search of the house or office is
generally not reasonable without a warrant issued on probable
cause. There are other contexts, however, where the public interest
is such that neither a warrant nor probable cause is required. Skinner, supra, 489 U.S. at 494 U. S.
619 -620; Griffin v. Wisconsin, 483 U.
S. 868 , 483 U. S. 873 (1987); New Jersey v. T.L.O., 469 U.
S. 325 , 469 U. S.
340 -341 (1985); Terry v. Ohio, 392 U.S. at 392 U. S. 20 .

															The Terry case is most instructive for present
purposes. There we held that an on-the-street "frisk" for weapons
must be tested by the Fourth Amendment's general proscription
against unreasonable searches because such a frisk involves

															"an entire rubric of police conduct -- necessarily swift action
predicated upon the on-the-spot observations of the officer on the
beat -- which historically has not been, and as a practical Page 494 U. S. 332 matter could not be, subjected to the warrant procedure." Ibid. We stated that there is " no ready test for
determining reasonableness other than by balancing the need to
search . . . against the invasion which the search . . . entails.'" Id. at 392 U. S. 21 (quoting Camara v. Municipal Court, 387 U.
S. 523 , 387 U. S.
536 -537 (1967)). Applying that balancing test, it was
held that although a frisk for weapons "constitutes a severe,
though brief, intrusion upon cherished personal security," 392 U.S.
at 392 U. S. 24 -25,
such a frisk is reasonable when weighed against the "need for law enforcement officers to protect themselves and
other prospective victims of violence in situations where they may
lack probable cause for an arrest." Id. at 392 U. S. 24 . We
therefore authorized a limited patdown for weapons where a
reasonably prudent officer would be warranted in the belief, based
on "specific and articulable facts," id. at 392 U. S. 21 , and
not on a mere "inchoate and unparticularized suspicion or hunch,'" id. at 392 U. S. 27 ,
"that he is dealing with an armed and dangerous individual." Ibid. In Michigan v. Long, 463 U. S. 1032 (1983), the principles of Terry were applied in the
context of a roadside encounter:

															"the search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden,
is permissible if the police officer possesses a reasonable belief
based on 'specific and articulable facts which, taken together with
the rational inferences from those facts, reasonably warrant' the
officer in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons." Id. at 463 U. S.
1049 -1050 (quoting Terry, supra, 392 U.S. at 392 U. S. 21 ).
The Long Court expressly rejected the contention that Terry restricted preventative searches to the person of a
detained suspect. 463 U.S. at 463 U. S.
1047 . In a sense, Long authorized a "frisk" of
an automobile for weapons.

															The ingredients to apply the balance struck in Terry and Long are present in this case. Possessing an arrest
warrant and probable cause to believe Buie was in his home, the
officers Page 494 U. S. 333 were entitled to enter and to search anywhere in the house in
which Buie might be found. Once he was found, however, the search
for him was over, and there was no longer that particular
justification for entering any rooms that had not yet been
searched.

															That Buie had an expectation of privacy in those remaining areas
of his house, however, does not mean such rooms were immune from
entry. In Terry and Long we were concerned with
the immediate interest of the police officers in taking steps to
assure themselves that the persons with whom they were dealing were
not armed with or able to gain immediate control of a weapon that
could unexpectedly and fatally be used against them. In the instant
case, there 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.

															We recognized in Terry that

															"[e]ven a limited search of the outer clothing for weapons
constitutes a severe, though brief, intrusion upon cherished
personal security, and it must surely be an annoying, frightening,
and perhaps humiliating experience." Terry, supra, 392 U.S. at 392 U. S. 24 -25.
But we permitted the intrusion, which was no more than necessary to
protect the officer from harm. Nor do we here suggest, as the
State Page 494 U. S. 334 does, that entering rooms not examined prior to the arrest is a de minimis intrusion that may be disregarded. We are quite
sure, however, that the arresting officers are permitted in such
circumstances to take reasonable steps to ensure their safety
after, and while making, the arrest. That interest is sufficient to
outweigh the intrusion such procedures may entail.

															We agree with the State, as did the court below, that a warrant
was not required. [ Footnote 1 ]
We also hold that as an incident to the arrest the officers could,
as a precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately adjoining
the place of arrest from which an attack could be immediately
launched. Beyond that, however, we hold that 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. This is no
more and no less than was required in Terry and Long, and as in those cases, we think this balance is the
proper one. [ Footnote 2 ] Page 494 U. S. 335 We should emphasize that such a protective sweep, aimed at
protecting the arresting officers, if justified by the
circumstances, is nevertheless not a full search of the premises,
but may extend only to a cursory inspection of those spaces where a
person may be found. [ Footnote
3 ] The sweep lasts no longer Page 494 U. S. 336 than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest and
depart the premises. IV Affirmance is not required by Chimel v. California, 395 U. S. 752 (1969), where it was held that in the absence of a search warrant,
the justifiable search incident to an in-home arrest could not
extend beyond the arrestee's person and the area from within which
the arrestee might have obtained a weapon. First, Chimel was concerned with a full-blown search of the entire house for
evidence of the crime for which the arrest was made, see
id. at 395 U. S. 754 , 395 U. S. 763 ,
not the more limited intrusion contemplated by a protective sweep.
Second, the justification for the search incident to arrest
considered in Chimel was the threat posed by the arrestee,
not the safety threat posed by the house, or more properly by
unseen third parties in the house. To reach our conclusion today,
therefore, we need not disagree with the Court's statement in Chimel, id. at 395 U. S.
766 -767, n. 12, that "the invasion of privacy that
results from a top-to-bottom search of a man's house [cannot be
characterized] as minor,'" nor hold that "simply because some interference with an individual's privacy
and freedom of movement has lawfully taken place, further
intrusions should automatically be allowed despite the absence of a
warrant that the Fourth Amendment would otherwise require," ibid. The type of search we authorize today is far
removed from the "top-to-bottom" search involved in Chimel ; moreover, it is decidedly not "automati[c]," but
may be conducted only when justified by a reasonable, articulable
suspicion that the house is harboring a person posing a danger to
those on the arrest scene. V We conclude that, by requiring a protective sweep to be
justified by probable cause to believe that a serious and
demonstrable potentiality for danger existed, the Court of
Appeals Page 494 U. S. 337 of Maryland applied an unnecessarily strict Fourth Amendment
standard. 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. We
therefore vacate the judgment below and remand this case to the
Court of Appeals of Maryland for further proceedings not
inconsistent with this opinion. It is so ordered. [ Footnote 1 ]

															Buie suggests that because the police could have sought a
warrant to search for dangerous persons in the house, they were
constitutionally required to do so. But the arrest warrant gave the
police every right to enter the home to search for Buie. Once
inside, the potential for danger justified a standard of less than
probable cause for conducting a limited protective sweep.

															[ Footnote 2 ]

															The State's argument that no level of objective justification
should be required because of "the danger that inheres in the
in-home arrest for a violent crime," Brief for Petitioner 23, is
rebutted by Terry v. Ohio, 392 U. S.
1 (1968), itself. The State argues that

															"[o]fficers facing the life-threatening situation of arresting a
violent criminal in the home should not be forced to pause and
ponder the legal subtleties associated with a quantum of proof
analysis,"

															Brief for Petitioner 23. But despite the danger that inheres in
on-the-street encounters and the need for police to act quickly for
their own safety, the Court in Terry did not adopt a
bright-line rule authorizing frisks for weapons in all
confrontational encounters. Even in high crime areas, where the
possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before
a frisk for weapons can be conducted. That approach is applied to
the protective sweep of a house.

															We reject the State's attempts to analogize this case to Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam), and Michigan v. Summers, 452 U.
S. 692 (1981). The intrusion in Mimms --
requiring the driver of a lawfully stopped vehicle to exit the car
-- was " de minimis, " 434 U.S. at 434 U. S. 111 . Summers held that a search warrant for a house carries
with it the authority to detain its occupants until the search is
completed. The State contends that this case is the "mirror image"
of Summers and that the arrest warrant carried with it the
authority to search for persons who could interfere with the
arrest. In that case, however, the search warrant implied a
judicial determination that police had probable cause to believe
that someone in the home was committing a crime. Here, the
existence of the arrest warrant implies nothing about whether
dangerous third parties will be found in the arrestee's house.
Moreover, the intrusion in Summers was less severe and
much less susceptible to exploitation than a protective sweep. A
more analogous case is Ybarra v. Illinois, 444 U. S.
85 (1979), in which we held that, although armed with a
warrant to search a bar and bartender, the police could not frisk
the bar's patrons absent individualized, reasonable suspicion that
the person to be frisked was armed and presently dangerous. Here,
too, the reasonable suspicion standard -- "one of the relatively
simple concepts embodied in the Fourth Amendment," United
States v. Sokolow, 490 U. S. 1 (1989)
-- strikes the proper balance between officer safety and citizen
privacy.

															[ Footnote 3 ]

															Our reliance on the cursory nature of the search is not
inconsistent with our statement in Arizona v. Hicks, 480 U. S. 321 (1987), that "[a] search is a search," id. at 480 U. S. 325 ,
or with our refusal in Hicks to sanction a standard less
than probable cause on the ground that the search of the stereo was
a "cursory inspection," rather than a "full-blown search," id. at 480 U. S. 328 .
When the officer in Hicks moved the turntable to look at
its serial number, he was searching for evidence plain and simple.
There was no interest in officer safety or other exigency at work
in that search. A protective sweep is without question a "search,"
as was the patdown in Terry, 392 U.S. at 392 U. S. 16 ;
they are permissible on less than probable cause only because they
are limited to that which is necessary to protect the safety of
officers and others.

															Justice STEVENS, concurring.

															Today the Court holds that reasonable suspicion, rather than
probable cause, is necessary to support a protective sweep while an
arrest is in progress. I agree with that holding and with the
Court's opinion, but I believe it is important to emphasize that
the standard applies only to protective sweeps. Officers
conducting such a sweep must have a reasonable basis for believing
that their search will reduce the danger of harm to themselves or
of violent interference with their mission; in short, the search
must be protective.

															In this case, to justify Officer Frolich's entry into the
basement, it is the State's burden to demonstrate that the officers
had a reasonable basis for believing not only that someone in the
basement might attack them or otherwise try to interfere with the
arrest, but also that it would be safer to go down the stairs
instead of simply guarding them from above until respondent had
been removed from the house. The fact that respondent offered no
resistance when he emerged from the basement is somewhat
inconsistent with the hypothesis that the danger of an attack by a
hidden confederate persisted after the arrest. Moreover, Officer
Rozar testified that he was not worried about any possible danger
when he arrested Buie. App. 9. [ Footnote 2/1 ] Officer Frolich, who conducted the
search, Page 494 U. S. 338 supplied no explanation for why he might have thought another
person was in the basement. He said only that he "had no idea who
lived there." Id. at 15. This admission is made telling by
Officer Frolich's participation in the three-day pre-arrest
surveillance of Buie's home. Id. at 4. The Maryland
Supreme Court was under the impression that the search took place
after "Buie was safely outside the house, handcuffed and unarmed."
314 Md. 151, 166, 550 A.2d 79, 86 (1988). All of this suggests that
no reasonable suspicion of danger justified the entry into the
basement.

															Indeed, were the officers concerned about safety, one would
expect them to do what Officer Rozar did before the arrest: guard
the basement door to prevent surprise attacks. App. 5. As the Court
indicates, Officer Frolich might, at the time of the arrest,
reasonably have "looked in" the already open basement door, ante at 494 U. S. 334 ,
to ensure that no accomplice had followed Buie to the stairwell.
But Officer Frolich did not merely "look in" the basement; he
entered it. [ Footnote 2/2 ] That
strategy is sensible if one wishes to search the basement. It is a
surprising choice for an officer, worried about safety, who need
not risk entering the stairwell at all.

															The State may thus face a formidable task on remand. However,
the Maryland courts are better equipped than are we to review the
record. See, e.g., Buie v. State, 314 Md., at 155, n. 2,
550 A.2d at 81, n. 2 (discussing state law rules restricting review
of the record on appeal of suppression decisions); Cf. United
States v. Hasting, 461 U. S. 499 , 461 U. S.
516 -518 (1983) (STEVENS, J., dissenting) (This Court
should avoid undertaking record review functions that can "better
be performed by other judges"). Moreover, the Maryland Court of
Special Page 494 U. S. 339 Appeals suggested that Officer Frolich's search could survive a
"reasonable suspicion" test, Buie v. State, 72 Md.App.
562, 576, 531 A.2d 1290 , 1297 (1987), and the Maryland Court of Appeals
has not reviewed this conclusion. I therefore agree that a remand
is appropriate.

															[ Footnote 2/1 ]

															Buie's attorney asked, "'You weren't worried about there being
any danger or anything like that?'" Officer Rozar answered,
" No.'" App. 9. [ Footnote 2/2 ]

															What more the officers might have done to protect themselves
against threats from other places is obviously a question not
presented on the facts of this case, and so is not one we can
answer. Indeed, the peculiarity of Officer Frolich's search is that
it appears to have concentrated upon the part of the house least
likely to make the departing officers vulnerable to attack.

															Justice KENNEDY, concurring.

															The Court adopts the prudent course of explaining the general
rule and permitting the state court to apply it in the first
instance. The concurrence by JUSTICE STEVENS, however, makes the
gratuitous observation that the State has a formidable task on
remand. My view is quite to the contrary. Based on my present
understanding of the record, I should think the officers' conduct
here was in full accord with standard police safety procedure, and
that the officers would have been remiss if they had not taken
these precautions. This comment is necessary, lest by acquiescence
the impression be left that JUSTICE STEVENS views can be
interpreted as authoritative guidance for application of our ruling
to the facts of the case.

															Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.

															Today the Court for the first time extends Terry v.
Ohio, 392 U. S. 1 (1968),
into the home, dispensing with the Fourth Amendment's general
requirements of a warrant and probable cause and carving a
"reasonable suspicion" exception for protective sweeps in private
dwellings. In Terry, supra, the Court held that a police
officer may briefly detain a suspect based on a reasonable
suspicion of criminal activity and may conduct a limited "frisk" of
the suspect for concealed weapons in order to protect herself from
personal danger. The Court deemed such a frisk "reasonable" under
the Fourth Amendment in light of the special "need for law
enforcement officers to protect themselves and other prospective
victims of violence" during investigative detentions, id. at 392 U. S. 24 , and
the Page 494 U. S. 340 brief, though far from inconsiderable, intrusion upon the
sanctity of the person." Id. at 392 U. S. 26 . Terry and its early progeny "permit[ted] only brief
investigative stops and extremely limited searches based on
reasonable suspicion." United States v. Place, 462 U. S. 696 , 462 U. S. 714 (1983) (BRENNAN, J., concurring in result). But this Court more
recently has applied the rationale underlying Terry to a
wide variety of more intrusive searches and seizures, [ Footnote 3/1 ] prompting my continued
criticism of the " emerging tendency on the part of the Court to
convert the Terry decision'" from a narrow exception into
one that "`swallow[s] the general rule that [searches] are
"reasonable" only if based on probable cause.'" Place,
supra, at 462 U. S. 719 (BRENNAN, J., concurring in result) (citations omitted). The Court today holds that Terry 's "reasonable
suspicion" standard "strikes the proper balance between officer
safety and citizen privacy" for protective sweeps in private
dwellings. Ante at 494 U. S. 335 ,
n. 2. I agree with the majority that officers executing an arrest
warrant within a private dwelling have an interest in protecting
themselves against potential ambush by third parties, see ante at 494 U. S. 333 ,
but the majority offers no support for its assumption that the
danger of ambush during planned home arrests approaches the danger
of unavoidable "on-the-beat" confrontations in "the myriad daily
situations in which policemen and citizens confront each other on
the street." Terry, supra, 392 U.S. at 392 U. S. 12 .
[ Footnote 3/2 ] In any event, Page 494 U. S. 341 the Court's implicit judgment that a protective sweep
constitutes a "minimally intrusive" search akin to that involved in Terry markedly undervalues the nature and scope of the
privacy interests involved.

															While the Fourth Amendment protects a person's privacy interests
in a variety of settings, "physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is
directed." United States v. United States District Court, 407 U. S. 297 , 407 U. S. 313 (1972). [ Footnote 3/3 ] The Court
discounts the nature of the intrusion because it believes that the
scope of the intrusion is limited. The Court explains that a
protective sweep's scope is "narrowly confined to a cursory visual
inspection of those places in which a person might be hiding," ante at 494 U. S. 327 ,
and confined in duration to a period "no longer than is necessary
to dispel the reasonable suspicion of danger and in any event no
longer than it takes to complete the arrest and depart the
premises." Ante at 494 U. S.
335 -336. [ Footnote 3/4 ]
But these spatial and temporal Page 494 U. S. 342 restrictions are not particularly limiting. A protective sweep
would bring within police purview virtually all personal
possessions within the house not hidden from view in a small
enclosed space. Police officers searching for potential ambushers
might enter every room including basements and attics; open up
closets, lockers, chests, wardrobes, and cars; and peer under beds
and behind furniture. The officers will view letters, documents and
personal effects that are on tables or desks or are visible inside
open drawers; books, records, tapes, and pictures on shelves; and
clothing, medicines, toiletries and other paraphernalia not
carefully stored in dresser drawers or bathroom cupboards. While
perhaps not a "full-blown" or "top-to-bottom" search, ante at 494 U. S. 336 ,
a protective sweep is much closer to it than to a "limited patdown
for weapons" or a " frisk' of an automobile." Ante at 494 U. S. 332 .
[ Footnote 3/5 ] Because the nature
and scope of the intrusion sanctioned here are far greater than
those upheld in Terry and Long, the Court's
conclusion that "[t]he ingredients to apply the balance struck in Terry and Long are present in this case," ibid., is unwarranted. The "ingredient" of a minimally
intrusive search is absent, and the Court's holding today therefore
unpalatably deviates from Terry and its progeny. [ Footnote 3/6 ] Page 494 U. S. 343 In light of the special sanctity of a private residence and the
highly intrusive nature of a protective sweep, I firmly believe
that police officers must have probable cause to fear that their
personal safety is threatened by a hidden confederate of an
arrestee before they may sweep through the entire home. Given the
state court determination that the officers searching Buie's home
lacked probable cause to perceive such a danger and therefore were
not lawfully present in the basement, I would affirm the state
court's decision to suppress the incriminating evidence. I
respectfully dissent.

															[ Footnote 3/1 ]

															The Court has recently relied on Terry to relax the
warrant and probable requirements for both searches of places, e.g., New York v. Class, 475 U. S. 106 (1986) (search of car interior); Michigan v. Long, 463 U. S. 1032 (1983) (same); and seizures of personal effects, e.g., New
Jersey v. T.L.O., 469 U. S. 325 (1985) (search of student's purse); United States v.
Place, 462 U. S. 696 (1983) (seizure of luggage).

															[ Footnote 3/2 ]

															Individual police officers necessarily initiate street
encounters without advance planning "for a wide variety of
purposes." Terry v. Ohio, 392 U.S. at 392 U. S. 13 . But
officers choosing to execute an arrest warrant in the suspect's
house may minimize any risk of ambush by, for example, a show of
force; in this case, at least six armed officers secured the
premises. And of course, officers could select a safer venue for
making their arrest.

															[ Footnote 3/3 ]

															Here the officers' arrest warrant for Buie and their probable
cause to believe he was present in the house authorized their
initial entry. But, as the majority concedes, "[o]nce he was found
. . . the search for him was over," and "Buie had an expectation of
privacy in those remaining areas of his house." Ante at 494 U. S. 333 .
The fact that some areas were necessarily exposed to the police
during Buie's arrest thus does not diminish his privacy interest in
the remaining rooms. See Chimel v. California, 395 U. S. 752 , 395 U. S. 767 ,
n. 12 (1969) ("[W]e can see no reason why, simply because some
interference with an individual's privacy and freedom of movement
has lawfully taken place, further intrusions should automatically
be allowed despite the absence of a warrant that the Fourth
Amendment would otherwise require").

															[ Footnote 3/4 ]

															The protective sweep in this case may have exceeded the
permissible temporal scope defined by the Court. The Court of
Appeals of Maryland expressly noted that "at the time of the
warrantless search, Buie was safely outside the house, handcuffed
and unarmed." 314 Md. 151, 166, 550 A.2d 79, 86 (1988). On remand,
therefore, the state court need not decide whether the "reasonable
suspicion" standard is satisfied in this case should it determine
that the sweep of the basement took place after the police had
sufficient time to "complete the arrest and depart the premises." Ante at 494 U. S.
336 .

															[ Footnote 3/5 ]

															Indeed, a protective sweep is sufficiently broad in scope that
today's ruling might encourage police officers to execute arrest
warrants in suspects' homes so as to take advantage of the
opportunity to peruse the premises for incriminating evidence left
in "plain view." This incentive runs directly counter to our
central tenet that "in [no setting] is the zone of privacy more
clearly defined than when bounded by the unambiguous physical
dimensions of an individual's home -- a zone that finds its roots
in clear and specific constitutional terms." Payton v. New
York, 445 U. S. 573 , 445 U. S. 589 (1980).

															[ Footnote 3/6 ]

															The Court's decision also to expand the "search incident to
arrest" exception previously recognized in Chimel v.
California, supra, allowing police officers without any
requisite level of suspicion to look into "closets and other spaces
immediately adjoining the place of arrest from which an attack
could be immediately launched," ante at 494 U. S. 334 ,
is equally disquieting. Chimel established that police
officers may presume as a matter of law, without need for factual
support in a particular case, that arrestees might take advantage
of weapons or destroy evidence in the area "within [their]
immediate control"; therefore, a protective search of that area is per se reasonable under the Fourth Amendment. Chimel,
supra, 395 U.S. at 395 U. S. 763 .
I find much less plausible the Court's implicit assumption today
that arrestees are likely to sprinkle hidden allies throughout the
rooms in which they might be arrested. Hence there is no comparable
justification for permitting arresting officers to presume as a
matter of law that they are threatened by ambush from "immediately
adjoining" spaces.


U.S. Supreme Court New York v. Harris, 495 U.S.
14 (1990) New York v. Harris No. 88-1000 Argued Jan. 10, 1990 Decided April 18,1990 495 U.S.
14 CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK Syllabus Police officers, having probable cause to believe that
respondent Harris committed murder, entered his home without first
obtaining a warrant, read him his Miranda rights, and
reportedly secured an admission of guilt. After he was arrested,
taken to the police station, and again given his Miranda rights, he signed a written inculpatory statement. The New York
trial court suppressed the first statement under Payton v. New
York, 445 U. S. 573 ,
which held that the Fourth Amendment prohibits the police from
effecting a warrantless and nonconsensual entry into a suspect's
home in order to make a routine felony arrest. However, the court
admitted the second statement, and Harris was convicted of
second-degree murder. The Appellate Division affirmed, but the
State Court of Appeals reversed. Applying the rule of Brown v.
Illinois, 422 U. S. 590 , and
its progeny that the indirect fruits of an illegal search or arrest
should be suppressed when they bear a sufficiently close
relationship to the underlying illegality, the court deemed the
second statement inadmissible because its connection with the
arrest was not sufficiently attenuated. Held: Where the police have probable cause to arrest a
suspect, the exclusionary rule does not bar the State's use of a
statement made by the defendant outside of his home, even though
the statement is taken after an arrest made in the home in
violation of Payton. The penalties imposed on the
Government where its officers have violated the law must bear some
relation to the purposes which the law serves. United States v.
Ceccolini, 435 U. S. 268 , 435 U. S. 279 .
The rule in Payton was designed to protect the physical
integrity of the home, not to grant criminal suspects protection
for statements made outside their premises where the police have
probable cause to make an arrest. Brown v. Illinois,
supra, and its progeny are distinguishable, since attenuation
analysis is only appropriate where, as a threshold matter, courts
determine that the challenged evidence is in some sense the product
of illegal governmental activity. Here, the police had a
justification to question Harris prior to his arrest; therefore,
his subsequent statement was not an exploitation of the illegal
entry into his home. Cf. United States v. Crews, 445 U. S. 463 .
Suppressing that statement would not serve the purpose of the Payton rule, since anything incriminating gathered from
Harris' in-home arrest has already been excluded. The principal
incentive to obey Page 495 U. S. 15 Payton still obtains: the police know that a
warrantless entry will lead to the suppression of evidence found or
statements taken inside the home. Moreover, the incremental
deterrent value of suppressing statements like Harris' would be
minimal, since it is doubtful that the desire to secure a statement
from a suspect whom the police have probable cause to arrest would
motivate them to violate Payton. Pp. 495 U. S.
17 -21.

															72 N.Y.2d 614, 536 N.Y.S.2d 1, 532 N.E.2d 1229 (1988),
reversed.

															WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
BLACKMUN, and STEVENS, JJ., joined, post, p. 495 U. S.
21 .

															Justice WHITE delivered the opinion of the Court.

															On January 11, 1984, New York City police found the body of Ms.
Thelma Staton murdered in her apartment. Various facts gave the
officers probable cause to believe that the respondent in this
case, Bernard Harris, had killed Ms. Staton. As a result, on
January 16, 1984, three police officers went to Harris's apartment
to take him into custody. They did not first obtain an arrest
warrant.

															When the police arrived, they knocked on the door, displaying
their guns and badges. Harris let them enter. Page 495 U. S. 16 Once inside, the officers read Harris his Miranda rights. Harris acknowledged that he understood the warnings, and
agreed to answer the officers' questions. At that point, he
reportedly admitted that he had killed Ms. Staton.

															Harris was arrested, taken to the station house, and again
informed of his Miranda rights. He then signed a written
inculpatory statement. The police subsequently read Harris the Miranda warnings a third time and videotaped an
incriminating interview between Harris and a district attorney,
even though Harris had indicated that he wanted to end the
interrogation.

															The trial court suppressed Harris' first and third statements;
the State does not challenge those rulings. The sole issue in this
case is whether Harris's second statement -- the written statement
made at the station house -- should have been suppressed because
the police, by entering Harris' home without a warrant and without
his consent, violated Payton v. New York, 445 U.
S. 573 (1980), which held that the Fourth Amendment
prohibits the police from effecting a warrantless and nonconsensual
entry into a suspect's home in order to make a routine felony
arrest. The New York trial court concluded that the statement was
admissible. Following a bench trial, Harris was convicted of
second-degree murder. The Appellate Division affirmed, 124 A.D.2d
472, 507 N.Y.S.2d 823 (1986).

															A divided New York Court of Appeals reversed, 72 N.Y.2d 614, 536
N.Y.S.2d 1, 532 N.E.2d 1229 (1988). That court first accepted the
trial court's finding that Harris did not consent to the police
officers' entry into his home, and that the warrantless arrest
therefore violated Payton even though there was probable
cause. Applying Brown v. Illinois, 422 U.
S. 590 (1975), and its progeny, the court then
determined that the station house statement must be deemed to be
the inadmissible fruit of the illegal arrest because the connection
between the statement and the arrest was not sufficiently
attenuated. Page 495 U. S. 17 The Court noted that some courts had reasoned that the "wrong in Payton cases . . . lies not in the arrest, but in the
unlawful entry into a dwelling without proper judicial
authorization,'" and had therefore declined to suppress confessions
that were made following Payton violations. 72 N.Y.2d at
623, 536 N.Y.S.2d at 6, 532 N.E.2d at 1234. The New York Court
disagreed with this analysis, finding it contrary to Payton and its own decisions interpreting Payton 's scope. We granted certiorari to resolve the
admissibility of the station house statement. 490 U.S. 1018
(1989). For present purposes, we accept the finding below that Harris
did not consent to the police officers' entry into his home and the
conclusion that the police had probable cause to arrest him. It is
also evident, in light of Payton, that arresting Harris in
his home without an arrest warrant violated the Fourth Amendment.
But, as emphasized in earlier cases,

															"we have declined to adopt a "per se or but for' rule" that
would make inadmissible any evidence, whether tangible or
live-witness testimony, which somehow came to light through a chain
of causation that began with an illegal arrest." United States v. Ceccolini, 435 U.
S. 268 , 435 U. S. 276 (1978). Rather, in this context, we have stated that

															"[t]he penalties visited upon the Government, and in turn upon
the public, because its officers have violated the law must bear
some relation to the purposes which the law is to serve." Id. at 435 U. S. 279 .
In light of these principles, we decline to apply the exclusionary
rule in this context because the rule in Payton was
designed to protect the physical integrity of the home; it was not
intended to grant criminal suspects, like Harris, protection for
statements made outside their premises where the police have
probable cause to arrest the suspect for committing a crime. Payton itself emphasized that our holding in that case
stemmed from the "overriding respect for the sanctity of the home
that has been embedded in our traditions since the origins of the
Republic." 445 U.S. at 445 U. S. 601 .
Although it had Page 495 U. S. 18 long been settled that a warrantless arrest in a public place
was permissible as long as the arresting officer had probable
cause, see United States v. Watson, 423 U.
S. 411 (1976), Payton nevertheless drew a line
at the entrance to the home. This special solicitude was necessary
because " physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.'" 445 U.S.
at 445 U. S. 585 (citation omitted). The arrest warrant was required to "interpose
the magistrate's determination of probable cause" to arrest before
the officers could enter a house to effect an arrest. Id. at 445 U. S.
602 -603. Nothing in the reasoning of that case suggests that an arrest in
a home without a warrant but with probable cause somehow renders
unlawful continued custody of the suspect once he is removed from
the house. There could be no valid claim here that Harris was
immune from prosecution because his person was the fruit of an
illegal arrest. United States v. Crews, 445 U.
S. 463 , 445 U. S. 474 (1980). Nor is there any claim that the warrantless arrest required
the police to release Harris, or that Harris could not be
immediately rearrested if momentarily released. Because the
officers had probable cause to arrest Harris for a crime, Harris
was not unlawfully in custody when he was removed to the station
house, given Miranda warnings and allowed to talk. For
Fourth Amendment purposes, the legal issue is the same as it would
be had the police arrested Harris on his doorstep, illegally
entered his home to search for evidence, and later interrogated
Harris at the station house. Similarly, if the police had made a
warrantless entry into Harris' home, not found him there, but
arrested him on the street when he returned, a later statement made
by him after proper warnings would no doubt be admissible.

															This case is therefore different from Brown v.
Illinois, 422 U. S. 590 (1975), Dunaway v. New York, 442 U.
S. 200 (1979), and Taylor v. Alabama, 457 U. S. 687 (1982). In each of those cases, evidence obtained from a criminal
defendant Page 495 U. S. 19 following arrest was suppressed because the police lacked
probable cause. The three cases stand for the familiar proposition
that the indirect fruits of an illegal search or arrest should be
suppressed when they bear a sufficiently close relationship to the
underlying illegality. See also Wong Sun v. United States, 371 U. S. 471 (1963). We have emphasized, however, that attenuation analysis is
only appropriate where, as a threshold matter, courts determine
that "the challenged evidence is in some sense the product of
illegal governmental activity." United States v. Crews,
supra, 445 U.S. at 445 U. S. 471 .
As Justice Titone, concurring in the judgment on the basis of New
York State precedent, cogently argued below,

															"[i]n cases such as Brown v. Illinois (supra) and its
progeny, an affirmative answer to that preliminary question may be
assumed, since the 'illegality' is the absence of probable cause
and the wrong consists of the police's having control of the
defendant's person at the time he made the challenged statement. In
these cases, the 'challenged evidence' -- i.e., the
post-arrest confession -- is unquestionably 'the product of [the]
illegal governmental activity' -- i.e., the wrongful
detention."

															72 N.Y.2d at 625, 536 N.Y.S.2d at 8, 532 N.E.2d at 1235.

															Harris's statement taken at the police station was not the
product of being in unlawful custody. Neither was it the fruit of
having been arrested in the home rather than someplace else. The
case is analogous to United States v. Crews, supra. In
that case, we refused to suppress a victim's in-court
identification despite the defendant's illegal arrest. The Court
found that the evidence was not " come at by exploitation' of .
. . the defendant's Fourth Amendment rights," and that it was not
necessary to inquire whether the "taint" of the Fourth Amendment
violation was sufficiently attenuated to permit the introduction of
the evidence. 445 U.S. at 445 U. S. 471 .
Here, likewise, the police had a justification to question Harris
prior to his arrest; therefore, his subsequent statement was not an
exploitation of the illegal entry into Harris' home. Page 495 U. S.
20 We do not hold, as the dissent suggests, that a statement taken
by the police while a suspect is in custody is always admissible as
long as the suspect is in legal custody. Statements taken during
legal custody would of course be inadmissible for example, if, they
were the product of coercion, if Miranda warnings were not
given, or if there was a violation of the rule of Edwards v.
Arizona, 451 U. S. 477 (1981). We do hold that the station-house statement in this case
was admissible because Harris was in legal custody, as the dissent
concedes, and because the statement, while the product of an arrest
and being in custody, was not the fruit of the fact that the arrest
was made in the house, rather than someplace else.

															To put the matter another way, suppressing the statement taken
outside the house would not serve the purpose of the rule that made
Harris's in-house arrest illegal. The warrant requirement for an
arrest in the home is imposed to protect the home, and anything
incriminating the police gathered from arresting Harris in his
home, rather than elsewhere, has been excluded, as it should have
been; the purpose of the rule has thereby been vindicated. We are
not required by the Constitution to go further and suppress
statements later made by Harris in order to deter police from
violating Payton. "As cases considering the use of unlawfully obtained evidence in
criminal trials themselves make clear, it does not follow from the
emphasis on the exclusionary rule's deterrent value that 'anything
which deters illegal searches is thereby commanded by the Fourth
Amendment.'" United States v. Leon, 468 U.
S. 897 , 468 U. S. 910 (1984) (citation omitted). Even though we decline to suppress
statements made outside the home following a Payton violation, the principal incentive to obey Payton still
obtains: the police know that a warrantless entry will lead to the
suppression of any evidence found or statements taken inside the
home. If we did suppress statements like Harris', moreover, the
incremental deterrent value would be minimal. Given that the police
have probable cause to arrest a suspect in Harris' position, they
need Page 495 U. S. 21 not violate Payton in order to interrogate the suspect.
It is doubtful therefore that the desire to secure a statement from
a criminal suspect would motivate the police to violate Payton. As a result, suppressing a station-house statement
obtained after a Payton violation will have little effect
on the officers' actions, one way or another.

															We hold that, where the police have probable cause to arrest a
suspect, the exclusionary rule does not bar the State's use of a
statement made by the defendant outside of his home, even though
the statement is taken after an arrest made in the home in
violation of Payton. The judgment of the court below is
accordingly Reversed. Justice MARSHALL, with whom Justices BRENNAN, BLACKMUN and
STEVENS join, dissenting.

															Police officers entered Bernard Harris' home and arrested him
there. They did not have an arrest warrant, he did not consent to
their entry, and exigent circumstances did not exist. An arrest in
such circumstances violates the Fourth Amendment. See Payton v.
New York, 445 U. S. 573 (1980); see also ante at 495 U. S. 16 , 495 U. S. 17 .
About an hour after his arrest, Harris made an incriminating
statement, which the government subsequently used at his trial. The
majority concedes that "[t]he fruits of that illegal entry" must be
suppressed. Ante at 495 U. S. 20 .
The sole question before us is whether Harris' statement falls
within that category.

															The majority answers this question by adopting a broad and
unprecedented principle, holding that

															"where the police have probable cause to arrest a suspect, the
exclusionary rule does not bar the State's use of a statement made
by the defendant outside of his home, even though the statement is
taken after an arrest made in the home in violation of Payton. " Ante this page. The majority's conclusion is wrong. Its
reasoning amounts to nothing more than an analytical
sleight-of-hand, resting on errors in logic, misreadings of our
cases, and an apparent blindness to the incentives the Court's Page 495 U. S. 22 ruling creates for knowing and intentional constitutional
violations by the police. I dissent. I In recent years, this Court has repeatedly stated that the
principal purpose of the Fourth Amendment's exclusionary rule is to
eliminate incentives for police officers to violate that Amendment. See, e.g., United States v. Leon, 468 U.
S. 897 , 468 U. S. 906 (1984). A police officer who violates the Constitution usually does
so to obtain evidence that he could not secure lawfully. The best
way to deter him is to provide that any evidence so obtained will
not be admitted at trial. Deterrence of constitutional violations
thus requires the suppression not only of evidence seized during an
unconstitutional search but also of

															"derivative evidence, both tangible and testimonial, that is the
product of the primary evidence, or that is otherwise acquired as
an indirect result of the unlawful search." Murray v. United States, 487 U.
S. 533 , 487 U. S.
536 -537 (1988) (citing Nardone v. United
States, 308 U. S. 338 , 308 U. S. 341 (1939)); see also Wong Sun v. United States, 371 U.
S. 471 , 371 U. S. 488 (1963). Not all evidence connected to a constitutional violation is
suppressible, however. Rather, the Court has asked

															"'whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.'" Wong Sun, supra, at 371 U. S. 488 (quoting J. Maguire, Evidence of Guilt, 221 (1959)). Accord,
Brown v. Illinois, 422 U. S. 590 , 422 U. S. 599 (1975); Dunaway v. New York, 442 U.
S. 200 , 442 U. S.
217 -218 (1979); Taylor v. Alabama, 457 U.
S. 687 , 457 U. S. 690 (1982).

															Because deterrence is a principal purpose of the exclusionary
rule, our attenuation analysis must be driven by an understanding
of how extensive exclusion must be to deter violations of the
Fourth Amendment. We have long held that, where police have
obtained a statement after violating the Fourth Amendment, the
interest in deterrence does not Page 495 U. S. 23 disappear simply because the statement was voluntary, as
required by the Fifth Amendment. See, e.g., Brown, supra, 422 U.S. at 422 U. S.
601 -602; Dunaway, supra, 442 U.S. at 442 U. S.
216 -217; Taylor, supra, 457 U.S. at 457 U. S. 690 .
Police officers are well aware that simply because a statement is
"voluntary" does not mean that it was entirely unaffected by the
Fourth Amendment violation. See Brown, supra, 422 U.S. at 422 U. S.
601 -602. Indeed, if the Fourth Amendment required
exclusion only of statements taken in violation of the Fifth
Amendment, the Fourth Amendment would serve no independent purpose.
A regime that suppresses only some fruits of constitutional
violations is a regime that barely begins to eliminate the
incentives to violate the Constitution.

															When faced with a statement obtained after an illegal arrest,
then, a court will have occasion to engage in the attenuation
inquiry only if it first determines that the statement is
"voluntary," for involuntary statements are suppressible in any
event. Attenuation analysis assumes that the statement is
"voluntary," and asks whether the connection between the illegal
police conduct and the statement nevertheless requires suppression
to deter Fourth Amendment violations. That question cannot be
answered with a set of per se rules. An inquiry into
whether a suspect's statement is properly treated as attributable
to a Fourth Amendment violation or to the suspect's independent act
of will has an irreducibly psychological aspect, and irrebutable
presumptions are peculiarly unhelpful in such a context.
Accordingly, we have identified several factors as relevant to the
issue of attenuation: the length of time between the arrest and the
statement, the presence of intervening circumstances, and the
"purpose and flagrancy" of the violation. See, e.g., Brown,
supra, 422 U.S. at 422 U. S.
603 -604.

															We have identified the last factor as "particularly" important.
422 U.S. at 422 U. S. 604 .
When a police officer intentionally violates what he knows to be a
constitutional command, exclusion is essential to conform police
behavior to the law. Such a "flagrant" violation is in marked
contrast to a violation Page 495 U. S. 24 that is the product of a good-faith misunderstanding of the
relevant constitutional requirements. This Court has suggested that
excluding evidence that is the product of the latter variety of
violation may result in deterrence of legitimate law
enforcement efforts. See Leon, supra, 468 U.S. at 468 U. S.
918 -920. Underlying this view is the theory that
officers fear that if their judgment as to the constitutionality of
their conduct turns out to be wrong, the consequences of their
misjudgments may be too costly to justify the possible law
enforcement benefits. Any doubt concerning the constitutionality of
a course of action will therefore be resolved against that course
of action. Whatever the truth of that theory, [ Footnote 1 ] the concern that officers who act in
good faith will be overdeterred is nonexistent when, based on a
cynical calculus of the likely results of a suppression hearing, an
officer intentionally decides to violate what he knows to be a
constitutional command.

															An application of the Brown factors to this case
compels the conclusion that Harris' statement at the station house
must be suppressed. About an hour elapsed between the illegal
arrest and Harris' confession, without any intervening factor other
than the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). This Court has held, however, that

															" Miranda warnings, alone and per se, . . .
cannot assure in every case that the Fourth Amendment violation has
not been unduly exploited." Brown, supra, 422 U.S. at 422 U. S. 603 (citing Westover v. United States, decided with Miranda v. Arizona, supra, 384 U.S. at 384 U. S.
496 -497). See also supra at 495 U. S. 22 -23.
Indeed, in Brown, we held that a statement made almost two
hours after an illegal arrest, and after Miranda warnings
had Page 495 U. S. 25 been given, was not sufficiently removed from the violation so
as to dissipate the taint. 422 U.S. at 422 U. S.
604 .

															As to the flagrancy of the violation, petitioner does not
dispute that the officers were aware that the Fourth Amendment
prohibited them from arresting Harris in his home without a
warrant. Notwithstanding the officers' knowledge that a warrant is
required for a routine arrest in the home,

															"the police went to defendant's apartment to arrest him and, as
the police conceded, if defendant refused to talk to them there,
they intended to take him into custody for questioning.
Nevertheless, they made no attempt to obtain a warrant, although
five days had elapsed between the killing and the arrest and they
had developed evidence of probable cause early in their
investigation. Indeed, one of the officers testified that it was
departmental policy not to get warrants before making arrests in
the home. From this statement a reasonable inference can be drawn .
. . that the department's policy was a device used to avoid
restrictions on questioning a suspect until after the police had
strengthened their case with a confession. Thus, the police
illegality was knowing and intentional, in the language of Brown, it 'had a quality of purposefulness,' and the
linkage between the illegality and the confession is clearly
established."

															72 N.Y.2d 614, 622, 536 N.Y.S.2d 1, 6, 532 N.E.2d 1229,
1233-1234 (1988) (citation omitted). [ Footnote 2 ] Page 495 U. S. 26 In short, the officers decided, apparently consistent with a
"departmental policy," to violate Harris' Fourth Amendment rights
so they could get evidence that they could not otherwise obtain. As
the trial court held, "No more clear violation of
[ Payton ], in my view, could be established." App. 20.
Where, as here, there is a particularly flagrant constitutional
violation and little in the way of elapsed time or intervening
circumstances, the statement in the police station must be
suppressed. II Had the Court analyzed this case as our precedents dictate that
it should, I could end my discussion here -- the dispute would
reduce to an application of the Brown factors to the
constitutional wrong and the inculpatory statement that followed.
But the majority chooses no such unremarkable battleground.
Instead, the Court redrafts our cases in the service of conclusions
they straightforwardly and explicitly reject. Specifically, the
Court finds suppression unwarranted on the authority of its newly
fashioned per se rule. In the majority's view, when police
officers make a warrantless home arrest in violation of Payton, their physical exit from the suspect's home
necessarily breaks the causal chain between the illegality and any
subsequent statement by the suspect, such that the statement is
admissible regardless of the Brown factors. [ Footnote 3 ] Page 495 U. S. 27 The Court purports to defend its new rule on the basis of the
self-evident proposition that the Fourth Amendment does not
necessarily require the police to release or to forego the
prosecution of a suspect arrested in violation of Payton. Ante at 495 U. S. 18 . To
the Court, it follows as a matter of course from this proposition
that a Payton violation cannot in any way be the "cause"
of a statement obtained from the suspect after he has been forced
from his home and is being lawfully detained. Because an
attenuation inquiry presupposes some connection between the
illegality and the statement, the Court concludes that no such
inquiry is necessary here. Ibid. Neither logic nor
precedent supports that conclusion. A Certainly, the police were not required to release Harris or
forego his prosecution simply because officers arrested him in
violation of Payton. But it is a dramatic leap from that
unexceptionable proposition to the suggestion that the Payton violation thus had no effect once the police took
Harris from his home. The Court's view to the contrary appears to
rest on a cramped understanding of the purposes underlying Payton. The home is a private place, more private than any
other. An invasion into the home is therefore the worst kind of
invasion of privacy. An intrusion into that sanctum is an assault
on the individual's solitude and on the family's communal bonds. As
we said in Payton :

															"The Fourth Amendment protects the individual's privacy in a
variety of settings. In none is the zone of privacy more clearly
defined than when bounded by Page 495 U. S. 28 the unambiguous physical dimensions of an individual's home -- a
zone that finds its roots in clear and specific constitutional
terms: 'The right of the people to be secure in their . . . houses
. . . shall not be violated.' That language unequivocally
establishes the proposition that"

															"[a]t 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."

															445 U.S. at 445 U. S.
589 -590 (ellipses in original) (quoting Silverman v.
United States, 365 U. S. 505 , 365 U. S. 511 (1961)). See also California v. Ciraolo, 476 U.
S. 207 , 476 U. S.
212 -213 (1986) ("The protection afforded the curtilage
is essentially a protection of families and personal privacy in an
area intimately linked to the home, both physically and
psychologically, where privacy expectations are most
heightened").

															The majority's per se rule in this case fails to take
account of our repeated holdings that violations of privacy in the
home are especially invasive. Rather, its rule is necessarily
premised on the proposition that the effect of a Payton violation magically vanishes once the suspect is dragged from his
home. But the concerns that make a warrantless home arrest a
violation of the Fourth Amendment are nothing so evanescent. A
person who is forcibly separated from his family and home in the
dark of night after uniformed officers have broken down his door,
handcuffed him, and forced him at gunpoint to accompany them to a
police station does not suddenly breathe a sigh of relief at the
moment he is dragged across his doorstep. Rather, the suspect is
likely to be so frightened and rattled that he will say something
incriminating. These effects, of course, extend far beyond the
moment the physical occupation of the home ends. The entire focus
of the Brown factors is to fix the point at which those
effects are sufficiently dissipated that deterrence is not
meaningfully advanced by suppression. The majority's assertion, as
though the proposition were axiomatic, that the effects of such an
intrusion must end when the violation ends is both Page 495 U. S. 29 undefended and indefensible. The Court's saying it may make it
law, but it does not make it true. B The majority's reading of our cases similarly lacks foundation.
In the majority's view, our attenuation cases are not concerned
with the lingering taint of an illegal arrest; rather, they focus
solely on whether a subsequently obtained statement is made during
an illegal detention of the suspect. Ante at 495 U. S. 18 -19
(quoting 72 N.Y.2d at 625, 536 N.Y.S.2d at 7, 532 N.E.2d at 1235
(Titone, J., concurring)). In the Court's view, if (and only if)
the detention is illegal at the moment the statement is made will
it be suppressed. Unlike an arrest without probable cause, a Payton violation alone does not make the subsequent
detention of the suspect illegal. Thus, the Court argues, no
statement made after a Payton violation has ended is
suppressible by reason of the Fourth Amendment violation as long as
the police have probable cause. [ Footnote 4 ]

															The majority's theory lacks any support in our cases. In each
case presenting issues similar to those here, we have asked the
same question: whether the invasion of privacy occasioned by the
illegal arrest taints a statement made after the violation
has ended -- stated another way, whether the arrest caused the
statement. See, e.g., Wong Sun, 371 U.S. at 371 U. S. 485 , 371 U. S. 488 ; Brown, 422 U.S. at 422 U. S.
591 -592, 422 U. S. 599 , 422 U. S. 603 ; Dunaway, Page 495 U. S. 30 442 U.S. at 442 U. S. 217 , 442 U. S. 218 ; Taylor, 457 U.S. at 457 U. S. 690 , 457 U. S. 694 .
Never before today has this Court asked whether the illegality
itself was continuing at the time the evidence was secured. See
Leon, 468 U.S. at 468 U. S. 911 (WHITE, J., for the Court) ("In short, the dissipation of the
taint' concept that the Court has applied in deciding whether
exclusion is appropriate in a particular case `attempts to mark the
point at which the detrimental consequences of illegal police
action become so attenuated that the deterrent effect of the
exclusionary rule no longer justifies its cost'") (citation
omitted). Indeed, such an approach would render irrelevant the first and
second of the Brown factors, which focus, respectively, on
the passage of time and the existence of intervening factors
between the illegality and the subsequently obtained statement. If,
as the majority claims, the Brown analysis does not even apply unless the illegality is ongoing at the time the
evidence is secured, no time would ever pass and no circumstance
would ever intervene between the illegality and the statement.

															The only Supreme Court case in which the majority even attempts
to find support is United States v. Crews, 445 U.
S. 463 (1980). Crews, however, is inapposite.
In that case, the defendant moved to suppress a witness's in-court
identification of him on the ground that he had been illegally
arrested. Crews' theory was that he was the fruit of his own
illegal arrest -- that he himself should have been "suppressed."
Because no identification of him could have been made if he were
not in the courtroom, his argument proceeded, that identification
had to be suppressed in turn. The Court rejected Crews'
argument:

															"Insofar as [Crews] challenges his own presence at trial, he
cannot claim immunity from prosecution simply because his
appearance in court was precipitated by an unlawful arrest. An
illegal arrest, without more, has never been viewed as a bar to
subsequent prosecution, nor as a defense to a valid conviction. The
exclusionary Page 495 U. S. 31 principle of Wong Sun and Silverthorne Lumber Co.
[v. United States, 251 U. S. 385 (1920)] delimits
what proof the Government may offer against the accused at
trial, closing the courtroom door to evidence secured by
official lawlessness. [Crews] is not himself a suppressible
'fruit,' and the illegality of his detention cannot deprive the
Government of the opportunity to prove his guilt through the
introduction of evidence wholly untainted by the police
misconduct."

															445 U.S. at 445 U. S. 474 (citations omitted; footnote omitted; emphases added).

															Seen in context, the majority's misuse of Crews is
apparent. As in Wong Sun, Brown , and Taylor, Harris seeks to suppress evidence -- a statement he made
one hour after his arrest. He does not contend that he cannot be
tried because he was arrested illegally, nor does he in any way
link his demand for suppression of his statement to a claim that
his presence at trial, or anywhere else, should somehow be
suppressed. Crews is therefore irrelevant. The only
authority the majority cites that directly supports its novel view
of Brown is a concurring opinion in the New York Court of
Appeals, ante at 495 U. S. 19 ,
which is hardly a sufficient basis on which to reject almost 30
years of cases. C Perhaps the most alarming aspect of the Court's ruling is its
practical consequences for the deterrence of Payton violations. Imagine a police officer who has probable cause to
arrest a suspect but lacks a warrant. The officer knows if he were
to break into the home to make the arrest without first securing a
warrant, he would violate the Fourth Amendment and any evidence he
finds in the house would be suppressed. Of course, if he does not
enter the house, he will not be able to use any evidence inside the
house either, for the simple reason that he will never see it. The
officer also knows, though, that waiting for the suspect to leave
his house before arresting him could entail a lot of waiting, and
the time he Page 495 U. S. 32 would spend getting a warrant would be better spent arresting
criminals. The officer could leave the scene to obtain a warrant,
thus avoiding some of the delay, but that would entail giving the
suspect an opportunity to flee.

															More important, the officer knows that, if he breaks into the
house without a warrant and drags the suspect outside, the suspect,
shaken by the enormous invasion of privacy he has just undergone,
may say something incriminating. Before today's decision, the
government would only be able to use that evidence if the Court
found that the taint of the arrest had been attenuated; after the
decision, the evidence will be admissible regardless of whether it
was the product of the unconstitutional arrest. [ Footnote 5 ] Thus, the officer envisions the
following best-case scenario if he chooses to violate the
Constitution: he avoids a major expenditure of time and effort,
ensures that the suspect will not escape, and procures the most
damaging evidence of all, a confession. His worst-case scenario is
that he will avoid a major expenditure of effort, ensure that the
suspect will not escape, and will see evidence in the house (which
would have remained unknown absent the constitutional violation)
that cannot be used in the prosecution's case-in-chief. The Court
thus creates powerful incentives for police officers to violate the
Fourth Amendment. In the context of our constitutional rights and
the sanctity of our homes, we cannot afford to presume that
officers will be entirely impervious to those incentives. * * * * I dissent.

															[ Footnote 1 ]

															This Court has never held that an officer's good-faith
misunderstanding of the law justifies the admission of
unconstitutionally seized evidence except in the limited context of
the officer's good-faith and objectively reasonable reliance on a
facially valid warrant issued by a neutral and detached magistrate. United States v. Leon, 468 U. S. 897 , 468 U. S.
925 -926 (1984). Even in that limited context, I think
that suppression is required. See id. at 468 U. S.
928 -960 (BRENNAN, J., dissenting).

															[ Footnote 2 ]

															The "restrictions on questioning" to which the court refers are
restrictions imposed by New York law. New York law provides that an
arrest warrant may not issue until an "accusatory instrument" has
been filed against the suspect. N.Y.Crim.Proc.Law § 120.20
(McKinney 1981). The New York courts have held that police officers
may not question a suspect in the absence of an attorney once such
an accusatory instrument has been filed. People v.
Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344
(1980). These two rules operate to prohibit police from questioning
a suspect after arresting him in his home unless his lawyer is
present. If the police comply with Payton, the suspect's
lawyer will likely tell him not to say anything, and the police
will get nothing. On the other hand, if they violate Payton by refusing to obtain a warrant, the suspect's
right to counsel will not have attached at the time of the arrest,
and the police may be able to question him without interference by
a lawyer. The lower court's inference that a departmental policy of
violating the Fourth Amendment existed was thus fully
justified.

															[ Footnote 3 ]

															The Court has a caveat of sorts. It holds that

															" where the police have probable cause to arrest a
suspect, the exclusionary rule does not bar the State's use of
a statement made by the defendant outside of his home, even though
the statement is taken after an arrest made in the home in
violation of Payton. " Ante at 495 U. S. 21 (emphasis added). But the caveat adds nothing. As the Court
concedes, it is unconstitutional for the police to hold a suspect
without probable cause, and any statement made during a detention
for which probable cause is lacking "is unquestionably the product
of [the] illegal governmental activity -- i.e., the
wrongful detention." Ante at 495 U. S. 19 (internal quotation marks omitted; citation omitted). Thus, the
Court concedes that any statement taken from a suspect who is in
custody without probable cause must be suppressed, irrespective
of whether there was an antecedent Payton violation. [ Footnote 4 ]

															The Court assures us that it does not hold "that a statement
taken by the police while a suspect is in custody is always
admissible as long as the suspect is in legal custody." Ante at 495 U. S. 20 .
Rather, such statements

															"would of course be inadmissible if, for example, they were the
product of coercion, if Miranda warnings were not given,
or if there was a violation of the rule of Edwards v.
Arizona, 451 U. S. 477 (1981)." Ibid. As the majority is no doubt well aware, each of
these examples constitutes a violation of the Fifth Amendment. But suppressing the consequences of a violation of the
Fifth Amendment does nothing to deter violations of the Fourth. See supra, at 495 U. S. 23 .
The Court's disclaimer thus only serves to reinforce the conclusion
that its ruling rests on the still-undefended premise that the
effects of Payton violations end at the suspect's
doorstep.

															[ Footnote 5 ]

															Indeed, if the officer, as here, works in New York State, the
Court's assertion that

															"[i]t is doubtful therefore that the desire to secure a
statement from a criminal suspect would motivate the police to
violate Payton, " ante at 495 U. S. 21 ,
takes on a singularly ironic cast. The court below found as a
matter of fact that the officers in this case had intentionally
violated Payton for precisely the reason the
Court identifies as "doubtful." See n 2, supra, and accompanying text.