In the Supreme Court of the United States In the Supreme Court of ...

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1. Terry’s officer safety logic encompasses non-arrest protective sweeps because the Fourth Amendment’s reasonableness standard permits officers to take reasonable safety measures. In Terry, this Court held an officer’s need to perform a protective stop and frisk outweighed the Fourth Amendment intrusion on the individual. Id. at 24. A stop and frisk occurs when officers briefly search a suspect’s “outer clothing” for weapons to protect themselves or “others nearby.” Id. at 30. This Court allows these limited searches, which are not subject to the warrant requirement, as long as the officer has a reasonable suspicion of danger. Id. Fifteen years later, this Court expanded Terry’s safety rationale. In Michigan v. Long, this Court held that, under Terry, it is reasonable for an officer, without a warrant, to protectively search the passenger compartment of a vehicle. 463 U.S. at 1049–50 (quoting Terry, 392 U.S. at 27); see also Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (“[I]nconvenience cannot prevail . . . against . . . concerns for the officer’s safety.”). In Long, as in Terry, this Court found that protecting safety outweighed the Fourth Amendment intrusion. Long, 463 U.S. at 1051. The Long Court, “[i]n a sense, . . . authorized a ‘frisk’ of an automobile for weapons.” Buie, 494 U.S. at 332. Terry’s logic, therefore, is broader than the protective stop and frisk, as interpreted in Long, and allows reasonable protective searches whenever officers objectively believe they are in danger. Long, 463 U.S. at 1050 (quoting Terry, 392 U.S. at 27) (“[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”). In Maryland v. Buie, this Court expanded Terry one step further. Buie, 464 U.S. at 332– 33. Under Buie, an officer may perform a protective sweep, or “a quick and limited search of [the] premises, incident to an arrest, and conducted to protect the safety of police officers or others.” Id. at 327, 337. Relying on Terry and Long, this Court again held the Fourth 9
Amendment intrusion was outweighed by the paramount interest in safety. Id. at 334. Buie emphasized the arrest, but only, as the Fifth Circuit explained, “because the arrest exposed the officers to danger.” United States v. Gould, 364 F.3d 578, 581 (5th Cir. 2004), abrogated on other grounds by Kentucky v. King, 131 S. Ct. 1849 (2011). Terry, Long, and Buie all suggest that a protective search is reasonable when an officer can point to “specific and articulable facts which . . . reasonably warrant” a conclusion that the officer or others are in danger. Buie, 494 U.S. at 327; Long, 463 U.S. at 1049; Terry, 392 U.S. at 21. In all three cases, this Court performed the Fourth Amendment balancing test and held that the safety interest outweighed the Fourth Amendment intrusion. See Buie, 494 U.S. at 332–33 (“[O]fficers were entitled to . . . search” because “[t]he ingredients to apply the balance struck in Terry and Long are present in this case.”). The majority of circuits correctly apply the same reasoning and hold that safety outweighs the Fourth Amendment intrusion in non-arrest protective sweeps. See, e.g., United States v. Hernandez, 941 F.2d 133, 135–36 (2d Cir. 1991) (noting this Court applied the same balancing test in Terry, Long, and Buie). 2. This Court should uphold the majority circuits’ broad construction of Terry, Long, and Buie by upholding protective searches when officers reasonably suspect danger. The First, Second, Fifth, Sixth, Seventh, and D.C. Circuits have all upheld the reasonableness of non-arrest protective sweeps, along with one panel of the Ninth Circuit. See, e.g., Leaf v. Shulnutt, 400 F.3d 1070, 1086–88 (7th Cir. 2005); United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005); Gould, 364 F.3d at 581; United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005); United States v. Taylor, 248 F.3d 506, 513–14 (6th Cir. 2001); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996–97 (D.C. Cir. 1992); contra United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000). 10
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Page 3 and 4: TABLE OF CONTENTS ii Page Questions
Page 5 and 6: TABLE OF CONTENTS-Continued iv Page
Page 7 and 8: TABLE OF AUTHORITIES-Continued vi P
Page 9 and 10: TABLE OF AUTHORITIES-Continued B. F
Page 11 and 12: investigators quickly determined th
Page 13 and 14: Procedural History On October 1, 20
Page 15 and 16: eckless conduct. Other felony offen
Page 17: The three seminal rulings governing
Page 21 and 22: go on unlimited fishing expeditions
Page 23 and 24: had waited for a search warrant to
Page 25 and 26: The First Circuit found a protectiv
Page 27 and 28: determine whether an offense qualif
Page 29 and 30: eexamined the same issue in light o
Page 31 and 32: F.3d at 7 (commenting that Congress
Page 33 and 34: Subcommittee on Crime of the House
Page 35 and 36: only other listed offenses involvin
Page 37 and 38: The possession of an unregistered s
Page 39 and 40: U.S. Const. amend. IV APPENDIX Rele
Page 41 and 42: (h) to receive or possess a firearm
Page 43 and 44: term applies regardless of whether
Page 45: U.S. Sentencing Guidelines Manual

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