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No. 05-1042

In the Supreme Court of the United States

ALFRED G. MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
KIRBY A. HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether police officers, who were lawfully in an apartment pursuant to a protective order, may conduct a brief, protective sweep when they reasonably fear for their safety.

In the Supreme Court of the United States

No. 05-1042

ALFRED G. MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1- A17) is reported at 430 F.3d 93. The memorandum opin ion of the district court (Pet. App. B1-B7) is reported at 306 F. Supp. 2d 414.

JURISDICTION

The court of appeals entered its judgment on Novem ber 16, 2005. The petition for a writ of certiorari was filed on February 14, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a bench trial in the United States District Court for the Southern District of New York, petitioner was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 29 months of imprisonment, to be followed by three years of supervised release. The court of appeals af firmed the conviction and remanded the case only for resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).

1. On September 23, 2003, New York City police officers accompanied petitioner's cousin, Kendu Newkirk, to the apartment he had shared with peti tioner. Earlier that day, Newkirk had obtained an order of protection against petitioner in the Bronx County Family Court, which provided that he could enter the apartment, accompanied by two police officers, to re trieve his belongings. Newkirk informed the accompa nying officers that he had obtained the order of protec tion because petitioner had threatened to "put a bullet through his head." Pet. App. A4.

Newkirk entered the apartment with his key, en countering petitioner and his girlfriend inside. The offi cers explained to petitioner that they were serving the order of protection and assisting Newkirk in removing his belongings. Pet. App. A4-A5. Petitioner then asked the police to "watch [Newkirk]" because "I don't want [him] to take my stuff." Id. at A5. As Newkirk was packing his belongings, petitioner asked the officers if he could enter a bedroom from which Newkirk had just exited to retrieve something. Ibid. One of the officers assented, but then followed petitioner into the bedroom "[f]or safety." Ibid. When following petitioner out of the room, the officer saw a shotgun standing upright in an open closet and in plain view. Id. at A5, B3. The offi cers arrested petitioner, who turned over another fire arm and admitted possession of them both. Id. at A5.

2. A grand jury returned a one-count indictment that charged petitioner with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). Peti tioner moved to suppress the firearms and his state ments. The district court denied the motion to suppress. Pet. App. B1-B8. The court held that the officer's entry into the bedroom with petitioner was a permissible pro tective sweep under Maryland v. Buie, 494 U.S. 325 (1990). The Court noted the "enhanced risk of danger experienced by an officer in a home," where the officer is "on his adversary's 'turf.'" Pet. App. B5 (quoting Buie, 494 U.S. at 333). While Buie involved the execu tion of an arrest warrant, the court reasoned that the "concern for officer safety when an officer is lawfully present in the home to assist with an OP [order of pro tection] in a domestic dispute * * * is no less than when the officer is there to make an arrest," because "[e]ach situation is fraught with the potential for am bush and violence." Id. at B6. Because petitioner's ear lier threat to "put a bullet through [Newkirk's] head" "implied motive, a willingness to resort to violence, and access to firearms," the court held that the officer rea sonably perceived a threat to safety that justified the very limited protective entry into the bedroom. Ibid.

3. The court of appeals affirmed. Pet. App. A1-A17. The court held that the protective sweep exception to the warrant requirement established by this Court in Buie, supra, was not limited to in-home arrests. Noting Buie's analytical roots in the protective pat-downs per mitted by Terry v. Ohio, 392 U.S. 1 (1968), and Michi gan v. Long, 463 U.S. 1032 (1983), the court reasoned that, "[a]t the core of Terry, Long and Buie is the com mon understanding that the Fourth Amendment's rea sonableness requirement is sufficiently flexible to allow officers who have an objectively credible fear of danger to take basic precautions to protect themselves." Pet. App. A9-A10. The court accordingly concluded that Buie's rationale-that officers lawfully present in a home who reasonably fear for their safety must be per mitted to take steps to protect themselves-"applies with equal force when officers are lawfully present in a home for purposes other than the in-home execution of an arrest warrant," as long as the officer's presence cre ates a reasonable risk of "danger that is similar to, or greater than, that which they would face if they were carrying out an arrest warrant." Id. at A10. In so hold ing, the court joined the decisions of several other cir cuits that had likewise declined to confine the protective sweep doctrine to the specific context of executing ar rest warrants. Id. at A10-A11.

The court then held that the protective sweep in this case was lawful. Pet. App. A13-A16. The court reasoned that petitioner's specific threat to Newkirk, which had resulted in the court's issuance of a protective order, and the possibility that the emotions aroused by the do mestic dispute could resurface, established a reasonable basis for the officer's "limited," "quick and unobtrusive" entry. Id. at A15-A16; see id. at A16 (officer's entry was "narrowly tailored to dispel the threat that [petitioner] would have posed by being in the second bedroom alone").

ARGUMENT

Petitioner seeks (Pet. 4-8) this Court's review to ad dress whether a protective sweep under Maryland v. Buie, 494 U.S. 325 (1990), is categorically limited to the in-home execution of arrest warrants. Because the court of appeals' decision is correct and consistent with the holdings of other circuits, this Court's review is not war ranted.

1. The courts of appeals that have addressed the question have consistently held, like the Second Circuit here, that protective sweeps may be permissible when officers lawfully enter a residence for reasons other than the execution of an arrest warrant. See United States v. Martins, 413 F.3d 139, 150 (1st Cir.) (holding that "po lice who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry"), cert. de nied, 126 S. Ct. 644 (2005); Leaf v. Shelnutt, 400 F.3d 1070, 1086-1088 (7th Cir. 2005) (finding that "it was not necessary for the officers to have made an arrest in or der for their search of the apartment to be justified"); United States v. Gould, 364 F.3d 578, 584-587 (5th Cir.) (en banc) (relying on Buie to uphold protective sweep following a consensual entry into an apartment), cert. denied, 543 U.S. 955 (2004); United States v. Taylor, 248 F.3d 506, 513 (6th Cir.) (same), cert. denied, 534 U.S. 981 (2001); United States v. Patrick, 959 F.2d 991, 996- 997 (D.C. Cir. 1992) (same).

Petitioner's reliance (Pet. 5) on United States v. Waldner, 425 F.3d 514 (8th Cir. 2005), United States v. Davis, 290 F.3d 1239 (10th Cir. 2002), and United States v. Reid, 226 F.3d 1020 (9th Cir. 2000), is misplaced.1

Davis creates no conflict because that case ad dressed the existence of exigent circumstances to enter a home in the first place. The court held that no such exigency existed, which rendered the officers' presence in the house entirely unlawful. 290 F.3d at 1243-1244. Accordingly, the court's footnoted observation that Buie involved an arrest situation, id. at 1242 n.4, was dicta, and it was equivocal dicta at that, see ibid. (noting that, "[e]ven if a 'protective sweep' were permissible" in a non-arrest situation, the officers' entry "exceeded the scope prescribed in Buie").

Likewise, in Reid, the Ninth Circuit invalidated a protective sweep that was undertaken in the absence of voluntary consent to enter the apartment and that thereby extended the scope of the officers' already un lawful intrusion. 226 F.3d at 1026-1027. In addition, while the court observed that Buie involved an arrest, and the facts at issue did not, the court immediately went on to hold that "the government did not point to any facts that demonstrated that a reasonably prudent officer would have believed that the apartment 'harbor[ed] an individual posing a danger to those on the arrest scene,'" id. at 1027 (quoting Buie, 494 U.S. at 334), or even "that another person was inside the apart ment," id. at 1028.2

Thus, both Davis and Reid stand for nothing more than the proposition that concerns for officer safety do not render lawful an officer's presence in a place where he has no right to be. That distinction between lawful and unlawful entries is critical. In Buie, the Court em phasized that the "police [had] every right to enter the home" under the Fourth Amendment. 494 U.S. at 334 n.1. It was only after the officers were lawfully inside that "the potential for danger justified a standard of less than probable cause for conducting a limited protective sweep." Ibid. That same principle applies when the lawful entry is based upon the enforcement of a protec tive order. Once lawfully inside, it is the potential for danger rather than the legal basis for entry that justi fies a protective sweep based on reasonable suspicion.

In Waldner, the Eighth Circuit acknowledged that other circuits had extended Buie to non-arrest situa tions, but stressed that they had done so only upon a "showing of a reasonable suspicion of dangerous individ uals in the house." 425 F.3d at 517. The court declined to extend Buie further, because in Waldner's case "there [was] no evidence that the officers had any articulable facts that an unknown individual might be in the office, or anywhere else in the house, ready to launch an at tack." Ibid. The court thus held that, "[u]nder these circumstances," the protective sweep "exceeded its per missible scope." Ibid. A concurring opinion by Judge Murphy underscored that the court's decision "does not mean that Buie would always foreclose a protective sweep when officers are serving a protective order." Id. at 518.

2. Contrary to petitioner's argument (Pet. 7-8), the court of appeals' decision does not cloud the standard for protective sweeps articulated in Buie. Whether officers enter a residence pursuant to an arrest warrant or some other lawful basis for entry, the standard for a protec tive sweep remains the same. The officers must have a reasonable, articulable basis for determining that a threat to safety exists, and the scope of the sweep must be limited to alleviating that specific concern. See Buie, 494 U.S. at 327.

Petitioner offers no evidence that the multiple courts of appeals that have been applying Buie outside the con text of an arrest warrant for years have had difficulty administering that well-established standard in the dif ferent settings they have confronted. While the exis tence of potential danger may be easier to establish in cases involving arrests, as Buie recognized, 494 U.S. at 333, nothing in Buie's language or rationale categori cally forecloses proof that an equivalent threat could arise following other lawful entries. Nor does petitioner identify any basis in the Fourth Amendment's standard of reasonableness for holding that officers' lives are less worthy of protection when enforcing a judicially issued protective order than when executing an arrest warrant.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
KIRBY A. HELLER
Attorney

MAY 2006

1 In Gould, this Court denied certiorari when the same conflict with Davis and Reid over the application of Buie outside the context of arrest warrants was asserted. See Gould v. United States, 543 U.S. 955 (2004); Gov't Br. in Opp. at 11-13, Gould, supra (No. 03-11063). No different outcome is warranted here.

2 Furthermore, as petitioner recognizes (Pet. 5), Ninth Circuit law on this question is not settled. In United States v. Garcia, 997 F.2d 1273 (1993), the Ninth Circuit upheld a protective sweep that was undertaken "for [the officers'] safety" after officers made a lawful consensual entry into an apartment, id. at 1282. There thus is no sound basis for concluding that the present case would have been resolved differently had it arisen within the Ninth Circuit.