Police officer safety and the Constitution.

"...it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties."(1)

Law enforcement is a dangerous and difficult job, a fact attested to by the numbers of law enforcement officers killed and injured each year during the performance of their duties. The U.S. Supreme Court, when applying the Constitution to law enforcement issues, consistently has recognized the inherent dangers of the job and has provided considerable latitude to accommodate the legitimate safety concerns of law enforcement officers.

Perhaps the clearest illustrations of this point are the recent Supreme Court cases that define the authority of officers to use force while effecting arrests or other seizures of persons under the fourth amendment.(2) In these cases, the Court has emphasized that any assessment of an officer's use of force in such circumstances must be "...judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," while making "...allowance...for the fact that officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly-evolving...."(3) A recent Federal court of appeals decision characterized the Supreme Court's approach to this issue in these words:

...the Supreme Court's standard of reasonableness is comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present....the [Court] intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases.(4)

But it is not only in the context of using force to effect an arrest or detention that the Court has demonstrated concern for the safety of law enforcement officers. A similar pattern may be seen in fourth amendment cases ranging from investigative detentions to executions of warrants inside private dwellings. Judicial concern for police officer safety runs like a golden thread throughout the fabric of constitutional criminal procedure.

This article surveys the cases that specifically deal with the safety concerns of law enforcement officers. It also discusses the degree to which the Constitution permits officers to protect themselves while performing their duties.

Investigative Detentions

Law enforcement responsibilities often demand that officers encounter individuals where some type of criminal activity is suspected but insufficient information exists to support an arrest. Uncertainty regarding an officer's authority during such encounters creates significant safety risks.

The Supreme Court initially addressed both the constitutional authority and the risks in Terry v. Ohio.(5) The Court held that officers can temporarily detain individuals who they suspect are engaging in criminal activities and frisk them for weapons when they have reason to believe they are armed. Observing that "...a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime...," the Court stated:

...there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.(6)

The Court cautioned that because the sole justification for the frisk is the protection of the officer and others nearby, it must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer."(7)

In Michigan v. Long,(8) the Court expanded the permissible scope of a frisk for weapons to include the passenger compartment of a vehicle during a lawful investigatory stop of its occupant. What began as a traffic-related stop quickly changed when officers saw a large hunting knife on the floorboard of the automobile. One of the officers retrieved the knife and conducted a further search in the passenger compartment of the car for other weapons. Instead of other weapons, the officer found a large quantity of marijuana. The State court suppressed the marijuana, holding that a frisk for weapons must be limited to the person.

Reversing the lower court's decision, the Supreme Court noted that "we have...expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed."(9) The Court continued:

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger...and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that 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...that the suspect is dangerous and the suspect may gain immediate control of weapons.(10)

The Supreme Court rejected the lower court's reasoning that the suspect was under police control and did not have access to other weapons inside the car. The Court pointed out that a suspect can break away from police control long enough to gain a weapon and further observed that if not arrested, the suspect will eventually be permitted to return to his car where he would have access to any weapon located inside.

"Routine" Vehicle Stops

A second highly vulnerable activity for police officers is the routine traffic stop - routine in the sense that at the time the stop is made, an officer generally has no reason to believe the stop involves anything more than a relatively minor violation that requires nothing more than issuing a citation. The vulnerability emerges from the very fact that the underlying basis for such stops is generally a relatively minor offense without a hint of danger. And yet, almost 10% of all officers feloniously killed in the United States each year are killed while making routine traffic stops.(11)

In 1977, the Supreme Court recognized this vulnerability in the case of Pennsylvania v. Mimms.(12) Two police officers stopped Mimms for driving an automobile with an expired license. One of the officers ordered Mimms to get out of the car, whereupon he observed a suspicious bulge under his jacket. Suspecting the bulge to be a weapon, the officer frisked Mimms and discovered a revolver.

Mimms' conviction for carrying a concealed weapon was reversed by the State supreme court on the ground that ordering him to get out of the car constituted an impermissible seizure under the fourth amendment. The Supreme Court, recognizing the "inordinate risk confronting an officer as he approaches a person seated in an automobile," reversed the State court's decision and held that the order given to Mimms was reasonable. The Court noted the legitimate interest of officer safety by stating:

Against this important interest we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car....What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.(13)

Custodial Arrests

The courts have long recognized the dangers associated with the inherently hostile atmosphere surrounding arrests. Likewise, as noted above, the Supreme Court has given considerable deference to officers in choosing the level of force necessary to safely effect an arrest of criminal suspects. Similarly, the Court has recognized the need to maintain the protection of officers as they complete the processes normally associated with arrests.

In the landmark decision of Chimel v. California,(14) the Supreme Court noted that in addition to the need to preserve evidence and prevent the escape of the arrestee, officers need to protect themselves when engaged in such activities. In this regard, the Court stated:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered....(15) (emphasis added) The Court then explained the need to extend this search beyond the person of the arrestee to the immediate area by commenting:

A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing....(16)

In New York v. Belton,(17) the Court extended the Chimel standard to permit the search of the passenger compartment of an automobile incident to the arrest of an occupant. The Court held that such a search also could encompass containers within the passenger compartment "because of the danger their contents might pose to the police."(18)

More recently, the Court further expanded the scope of the search incident to arrest by permitting, under appropriate circumstances, "protective sweeps" in houses where officers are effecting arrests. As the phrase suggests, the sole purpose of this expansion is "to protect the safety of police officers or others."

In Maryland v. Buie,(19) police officers, armed with an arrest warrant, entered the suspect's residence to arrest him for armed robbery. When they entered, the officers fanned out to cover the first and second floors in an effort to locate the suspect. One officer covered the door leading to the basement to prevent anyone from endangering the officers from that direction. The officer shouted into the basement, ordering anyone there to come out. The suspect emerged from the basement and was arrested. An officer then entered the basement "in case there was someone el se" down there and discovered an article of clothing matching that worn by one of the armed robbers.

Reversing a State court decision to suppress the clothing, the Supreme Court analogized the fundamental issue in this case to that in Terry v. Ohio, in which it was determined that "...although a frisk for weapons constitutes a severe, though brief, intrusion upon cherished personal security, such a frisk is reasonable when weighed against the need for law enforcement officers to protect themselves and other prospective victims of violence...."(20)

In Buie, the Court observed that in Terry "...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."(21) Applying that concern to the facts in Buie, the Court concluded:

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....[U]nlike an encounter on the street or along the highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.' An ambush in the confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.(22)

Building upon this logic, the Court devised a two-tiered rule to accommodate the safety needs of officers when conducting arrests inside premises. First, as incident to the arrest, officers, without either probable cause or reasonable suspicion, may look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Second, a protective sweep may extend to other areas of the house if officers have a reasonable suspicion to believe the area harbors individuals posing a danger to those at the arrest scene. The Court emphasized that a protective sweep - like its constitutional cousin the frisk for weapons - must be limited to its purpose with respect to both space and time:

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.(23)

Executions of Warrants

As with other law enforcement activities, executing search warrants on premises poses safety concerns for officers. Perhaps the two most significant concerns are those that arise during the initial entry and those posed by the presence of individuals on the premises in which the search must take place. In both instances, the Supreme Court has taken some notice of the safety issues and addressed them.

In many cases, search warrants are executed without officers actually confronting significant risks. But the potential for the emergence of risks is ever-present, particularly where the criminal activity being investigated involves violence and the presence of weapons.

An entry through a doorway or a similarly constricted space to execute a warrant places officers in a highly vulnerable position. Although these risks may be offset somewhat by the element of surprise, officers must first knock, announce their authority and purpose, and provide occupants with an opportunity to permit entry before making a forcible entry. This requirement has been codified in many States, as well as in the Federal Code, and is now a constitutional standard.

In Wilson v. Arkansas,(24) the Supreme Court unanimously held that because the knock-and-announce rule was a part of the common law at the time the fourth amendment was adopted, it is relevant to an assessment of reasonableness. The Court stated:

An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.(25)

A violation of this rule by law enforcement officers presumably could result in the suppression of any evidence obtained as a result of the entry,(26) while compliance could significantly increase the dangers to which officers may be exposed. More important, the Supreme Court held that "...although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.(27)

Without attempting to delineate the specific circumstances where an unannounced entry would be permissible, the Court observed that courts applying the common law rule previously have recognized concern for safety as one of the exceptions to the general rule. In Wilson, the State contended that the unannounced entry should be upheld because the officers reasonably believed that a prior announcement would have placed them in danger. This belief was based on their knowledge that the defendant had threatened an informant with a pistol and also had previously been convicted of arson and firebombing. Conceding that "[t]hese considerations may well provide the necessary justification for the unannounced entry in this case,"(28) the Supreme Court remanded the case to the State court to make the initial determination of that issue.

The Supreme Court addressed another safety consideration connected with the execution of search warrants in Michigan v. Summers.(29) Armed with a search warrant for a dwelling, officers detained the occupant while the warrant for drugs was being executed. The Court upheld the detention of the defendant and recognized the "legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found."(30) However, the Court further explained:

Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers .... The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.(31)

Conclusion

The protection of the lives and safety of those who enforce the law is the responsibility of the society that reaps the benefits of that service. Unfortunately, the nature of law enforcement dictates that officers will continue to be exposed to risks of death and injury while performing their duties.

It is critical to recognize that the Constitution does not require officers to assume greater risks than those inherent in the job. In fact, as the cases discussed here illustrate, the Supreme Court has acknowledged those issues and has drawn rules to accommodate them. Given the Supreme Court's deference to the legitimate safety concerns of law enforcement officers, and the clear interest of society in protecting those who are charged with enforcing society's laws, departmental policies that are more restrictive should be carefully evaluated to ensure officers are not being required to assume unreasonable risks to their safety.

Endnotes

1 Terry v. Ohio, 392 U.S. 1, at 23 (1968).

2 See Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989).

3 Graham, 490 U.S., at 396-397.

4 Roy v. Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994).

5 392 U.S. 1 (1968).

6 392 U.S., at 26-27.

7 392 U.S., at 27.

8 463 U.S. 1032 (1981).

9 463 U.S., at 1048.

10 463 U.S., at 1049.

11 FBI Uniform Crime Reports, Law Enforcement Officers Killed and Assaulted, 1990.

12 434 U.S. 106 (1977).

13 434 U.S., at 111.

14 395 U.S. 752 (1969).

15 395 U.S., at 762-763.

16 395 U.S., at 763.

17 453 U.S. 454 (1981).

18 453 U.S., at 461.

19 494 U.S. 325 (1990).

20 494 U.S., at 332.

21 494 U.S., at 333.

22 494 U.S., at 333.

23 494 U.S., at 335-336.

24 115 S.Ct. 1914 (1995).

25 115 S.Ct., at 1916.

26 In Wilson, the prosecution argued that even if the entry was deemed unconstitutional by virtue of the failure to knock and announce, the evidence discovered during the execution of a valid search warrant need not be suppressed in light of the "independent source" and "inevitable discovery" exceptions to the exclusionary rule. See Segura v. United States, 468 U.S. 796 (1984), and Nix v. Williams, 467 U.S. 431 (1984), respectively. The Supreme Court declined to decide that issue, leaving the question of appropriate remedy open for a future case.

27 115 S.Ct., at 1919.

28 115 S.Ct., at 1919.

29 452 U.S. 692 (1981).

30 452 U.S., at 702.

31 452 U.S., at 702-703.