author: Chief Justice Rehnquist Justice Brennan,

text:
    BLYSTONE v. PENNSYLVANIA
    No. 88-6222.
    Argued October 10, 1989
    Decided February 28, 1990

      Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and Kennedy, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, and in all but Part IV of which Blackmun and Stevens, JJ., joined, post, p. 309.

      Paul R. Gettleman argued the cause for petitioner. With him on the briefs was Stefan Presser.

      Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued the cause for respondent. With him on the brief were Ronald Eisenberg, Hugh J. Burns, Jr., Ewing D. Newcomer, and Gaele McLaughlin Barthold, Special Deputy Attorneys General, and Robert A. Grad, Chief Deputy Attorney General.

       A brief of amici curiae urging affirmance was filed for the State of California et al. by John K. Van de Karnp, Attorney General of California, Richard B. IglehaH, Chief Assistant Attorney General, Arnold O. Overoye, Senior Assistant Attorney General, and Edmund D. McMurray, Dane R. Gillette, and Ward A. Campbell, Deputy Attorneys General, RobeH K. Corbin, Attorney General of Arizona, John J. Kelly, Chief State’s Attorney of Connecticut, James T. Jones, Attorney General of Idaho, Neil F. HaHigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Marc Racicot, Attorney General of Montana, Brian McKay, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Lacy H. Thornburg, Attorney General of North Carolina, T. Travis Medlock, Attorney General of South Carolina, Michael Burson, Attorney General of Tennessee, R. Paul Van Dam, Attorney General of Utah, and Joseph P. Meyer, Attorney General of Wyoming.

   Chief Justice Rehnquist

delivered the opinion of the Court.

A Pennsylvania jury sentenced petitioner Scott Wayne Blystone to death after finding him guilty of robbing and murdering a hitchhiker who was unlucky enough to have accepted a ride in his car. Petitioner challenges his sentence on the ground that the State’s death penalty statute is unconstitutional because it requires the jury to impose a sentence of death if, as in this case, it finds at least one aggravating circumstance and no mitigating circumstances. We hold that the Pennsylvania death penalty statute, and petitioner’s sentence under it, comport with our decisions interpreting the Eighth Amendment to the United States Constitution.

On a September night in 1983, Dalton Charles Smith-burger, Jr., an individual characterized at trial as possessing a learning disability, was attempting to hitch a ride along a Pennsylvania road. Petitioner, who was driving an auto carrying his girlfriend and another couple, observed Smith-burger and announced: “I am going to pick this guy up and rob him, okay . . . ?” His friends acquiesced in the idea. Once petitioner had Smithburger in the car, he asked him if he had any money for gas. Smithburger responded that he only had a few dollars and began searching a pocket for money. Dissatisfied, petitioner pulled out a revolver, held it to Smithburger’s head, and demanded that Smithburger close his eyes and put his hands on the dash. Petitioner then pulled off the road and ordered Smithburger out of the car and into a nearby field. After searching his victim at gunpoint and recovering $13, petitioner told Smithburger to lie face down in the field. He later said to a friend: “‘He [Smithburger] was so scared. When I was searching him, his body was shaking.’” 519 Pa. 450, 490, 549 A. 2d 81, 100 (1988).

Petitioner then ordered his victim not to move, and crept back to the car to tell his companions he was going to kill Smithburger. Petitioner returned to the field where, paralyzed by fright, Smithburger remained with his face to the ground. Petitioner asked his victim what kind of car he had been in. Smithburger responded with the wrong answer— he accurately described the car as green with a wrecked back end. Petitioner then said “‘goodbye’” and discharged six bullets into the back of Smithburger’s head. During a subsequent conversation with a friend, petitioner was recorded on a concealed device “bragging in vivid and grisly detail of the killing of that unlucky lad.” Id., at 457, 549 A. 2d, at 84. In response to a query during the conversation as to whether petitioner dreamed about, or felt anything from, the murder, petitioner stated: “‘We laugh about it. . . . [I]t gives you a realization that you can do it. ... You can walk and blow somebody’s brains out and you know that you can get away with it. It gives you a feeling of power, self-confidence....’” Id., at 489-490, 549 A. 2d, at 100.

Petitioner was charged with and convicted of first-degree murder, robbery, criminal conspiracy to commit homicide, and criminal conspiracy to commit robbery. The same jury that convicted petitioner found as an aggravating circumstance that petitioner “committed a killing while in the perpetration of a felony.” 42 Pa. Cons. Stat. § 9711(d)(6) (1988). The jury found that no mitigating circumstances existed, and accordingly sentenced petitioner to death pursuant to the Pennsylvania death penalty statute which provides that “[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance . . . and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” § 9711(c)(l)(iv). On direct appeal to the Supreme Court of Pennsylvania, petitioner argued that the death penalty statute was unconstitutional because it mandated a sentence of death based on the outcome of the weighing process. The court summarily rejected this argument, see 519 Pa., at 473, 549 A. 2d, at 92, noting that it had been expressly refuted in its decision in Commonwealth v. Peterkin, 511 Pa. 299, 326-328, 513 A. 2d 373, 387-388 (1986), cert. denied, 479 U. S. 1070 (1987). In Peterkin, the court reasoned that the statute properly accommodated the concerns of Furman v. Georgia, 408 U. S. 238 (1972), that jury discretion be channeled to avoid arbitrary and capricious capital sentencing, and Lockett v. Ohio, 438 U. S. 586 (1978), that a capital jury be allowed to consider all relevant mitigating evidence. 511 Pa., at 326-328, 513 A. 2d, at 387-388. We granted certiorari, 489 U. S. 1096 (1989), to decide whether the mandatory aspect of the Pennsylvania death penalty statute renders the penalty imposed upon petitioner unconstitutional, because it improperly limited the discretion of the jury in deciding the appropriate penalty for his crime. We now affirm.

The constitutionality of a death penalty statute having some “mandatory” aspects is not a novel issue for this Court. In Jurek v. Texas, 428 U. S. 262 (1976), we upheld a statute requiring the imposition of a death sentence if the jury made certain findings against the defendant beyond the initial conviction for murder. See id., at 278 (White, J., concurring in judgment). A majority of the Court believed that the Texas sentencing scheme at issue in Jurek cured the constitutional defect identified in Furman — namely, that unguided juries were imposing the death penalty in an inconsistent and random manner on defendants. See Furman, supra, at 309-310 (Stewart, J., concurring). Thus, by suitably directing and limiting a sentencing jury’s discretion “so as to minimize the risk of wholly arbitrary and capricious action,” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), the Texas death penalty scheme was found to pass constitutional muster. See Jurek, 428 U. S., at 276.

It was also thought significant that the Texas sentencing scheme allowed the jury to consider relevant mitigating evidence. “A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Id., at 271 (opinion of Stewart, Powell, and Stevens, JJ.). On the same day that Jurek was decided, the Court struck down two capital sentencing schemes largely because they automatically imposed a sentence of death upon an individual convicted of certain murders, without allowing “particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon hjm of a sentence of death.” Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (plurality opinion); Roberts v. Louisiana, 428 U. S. 325, 333-334 (1976) (plurality opinion); see also Lockett v. Ohio, 438 U. S., at 604 (plurality opinion) (“The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of relevant facets of the character and record of the individual offender or the circumstances of the particular offense”) (emphasis in original; quotation omitted).

In Lockett, the Court provided further guidance on the nature of “relevant” mitigating circumstances, concluding that a sentence!" must be allowed to consider, “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Ibid, (emphasis in original; footnote omitted). Last Term, we elaborated on this principle, holding that “the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” Penry v. Lynaugh, 492 U. S. 302, 328 (1989).

We think that the Pennsylvania death penalty statute satisfies the requirement that a capital sentencing jury be allowed to consider and give effect to all relevant mitigating evidence. Section 9711 does not limit the types of mitigating evidence which may be considered, and subsection (e) provides a jury with a nonexclusive list of mitigating factors which may be taken into account — including a “catchall” category providing for the consideration of “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” See 42 Pa. Cons. Stat. § 9711(e)(8) (1988). Nor is the statute impermissibly “mandatory” as that term was understood in Wood-son or Roberts. Death is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. This is sufficient under Lockett and Penry.

Petitioner challenges the statute as it was applied in his particular case. This challenge essentially consists of a claim that his sentencing proceeding was rendered “unreliable” by the mandatory aspect of § 9711 for two reasons. See Wood-son, supra, at 305 (there is a “need for reliability in the determination that death is the appropriate punishment in a specific case”) (plurality opinion). First, petitioner asserts that the mandatory feature of his jury instructions — derived, of course, from the statute — precluded the jury from evaluating the weight of the particular aggravating circumstance found in his case. Second, petitioner contends that the mandatory feature of the sentencing'instructions unconstitutionally limited the jury’s consideration of unenumerated mitigating circumstances. We address these arguments in turn.

At sentencing, petitioner’s jury found one aggravating circumstance present in this case — that petitioner committed a killing while in the perpetration of a robbery. No mitigating circumstances were found. Petitioner contends that the mandatory imposition of death in this situation violates the Eighth Amendment requirement of individualized sentencing since the jury was precluded from considering whether the severity of his aggravating circumstance warranted the death sentence. We reject this argument. The presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighed by a jury. See Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (“The use of ‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion”). The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence. In petitioner’s case the jury was specifically instructed to consider, as mitigating evidence, any “matter concerning the character or record of the defendant, or the circumstances of his offense.” App. 12-13. This was sufficient to satisfy the dictates of the Eighth Amendment.

Next, petitioner maintains that the mandatory aspect of his sentencing instructions foreclosed the jury’s consideration of certain mitigating circumstances. The trial judge gave the jury examples of mitigating circumstances that it was entitled to consider, essentially the list of factors contained in § 9711(e). Among these, the judge stated that the jury was allowed to consider whether petitioner was affected by an “extreme” mental or emotional disturbance, whether petitioner was “substantially” impaired from appreciating his conduct, or whether petitioner acted under “extreme” duress. Petitioner argues that these instructions impermissibly precluded the jury’s consideration of lesser degrees of disturbance, impairment, or duress. This claim bears scant relation to the mandatory aspect of Pennsylvania’s statute, but in any event we reject it. The judge at petitioner’s trial made clear to the jury that these were merely items it could consider, and that it was also entitled to consider “any other mitigating matter concerning the character or record of the defendant, or the circumstances of his offense.” App. 12-13. This instruction fully complied with the requirements of Lockett and Penry.

Three Terms ago, in McCleskey v. Kemp, 481 U. S. 279 (1987), we summarized the teachings of the Court’s death penalty jurisprudence:

“In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” Id., at 305-306.

We think petitioner’s sentence under the Pennsylvania statute satisfied these requirements. The fact that other States have enacted different forms of death penalty statutes which also satisfy constitutional requirements casts no doubt on Pennsylvania’s choice. Within the constitutional limits defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.

Affirmed.

Justice Brennan,

with whom Justice Marshall joins, and with whom Justice Blackmun and Justice Stevens join except as to Part IV, dissenting.

The hallmark of our Eighth Amendment jurisprudence is that because the “penalty of death is qualitatively different from a sentence of imprisonment,” Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion), capital punishment may not be imposed unless the sentencer makes an individualized determination that death is the appropriate sentence for a particular defendant. This Court has repeatedly invoked this principle to invalidate mandatory death penalty statutes for even the most egregious crimes. See Sumner v. Shuman, 483 U. S. 66, 85 (1987) (murder committed by inmate serving life sentence); Roberts v. Louisiana, 431 U. S. 633, 637 (1977) (murder of police officer); Roberts v. Louisiana, 428 U. S. 325, 333 (1976) (plurality opinion) (all first-degree murders); Woodson, supra (same). Today, for the first time, the Court upholds a statute containing a mandatory provision that gives the legislature rather than the jury the ultimate decision whether the death penalty is appropriate in a particular set of circumstances. Such a statute deprives the defendant of the type of individualized sentencing hearing required by the Eighth Amendment. I respectfully dissent.

I

After a defendant is convicted of first-degree murder in Pennsylvania, the court must hold a separate sentencing hearing at which the jury determines whether the death penalty is warranted. 42 Pa. Cons. Stat. § 9711(a) (1988). The jury considers the aggravating circumstances that are listed in the statute. In addition, the jury considers specific enumerated mitigating circumstances and “any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” § 9711(e). The State must prove the existence of aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating circumstances by a preponderance of the evidence. §9711(c)(l)(iii). The statute provides that “[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance.” § 9711(c) (l)(iv) (emphasis added). The statute therefore deprives the jury of any sentencing discretion once it has found one aggravating circumstance but no mitigating circumstances; the jury may not consider whether the aggravating circumstance, by itself, justifies the imposition of the most extreme sanction available to society.

This case illustrates the effect of the mandatory provision of the statute. The jury found as an aggravating circumstance that petitioner had committed murder during a $13 robbery. § 9711(d)(6). But petitioner presented no evidence of mitigating circumstances and the jury found none. App. 19. The jury was told that in such a situation, it was not allowed to make the ultimate decision whether the death penalty was justified. The judge instructed the jury that once it found “an aggravating circumstance and no mitigating circumstances, it is your duty to return a verdict of death.” Id., at 11 (emphasis added); see id., at 14 (“Your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstances”) (emphasis added).

The prosecutor emphasized that each juror had sworn an oath to follow the law and that, in this case, the law mandated the death penalty:

“Under the law, if you have an aggravating circumstance and no mitigating circumstances, it is your duty to impose the death penalty ... so each of you were asked last week when we questioned you whether or not, under the appropriate circumstances, you could impose the death penalty and each of you replied that you could. Each of you replied that you would follow the law, and each of you replied that whatever your duty was, you would follow it.” Id., at 23 (emphasis added).

Indeed, the prosecutor argued that because the jury had already found an aggravating circumstance by finding petitioner guilty of robbery, the statute mandated that the death penalty be imposed unless the defendant proved at least one mitigating circumstance.

“Our law doesn’t permit the jury to impose the death penalty or impose a life sentence as they feel it should be, but rather there are certain specific times when the death penalty should be imposed and there are certain specific times when it should not be imposed. The court touched upon it and told you of aggravating and mitigating circumstances. The aggravating circumstance in this case is that this defendant. . . committed a killing in the perpetration of a felony. The felony in this case was the robbery. You have already made a determination by your verdict that this defendant was guilty of that robbery, so you have the aggravating circumstance. It is already proven and you already believed it. ... You must determine from the evidence presented in this Courtroom whether or not there are any mitigating circumstances; if not, you must follow the law and impose the death penalty.” Id., at 22-24.

Hence, both the judge and the prosecutor emphasized that if the jury failed to find any mitigating factors, the legislature had determined that death was the appropriate sentence.

II

The majority does not dispute this description of the Pennsylvania statute or its application in this case. Rather, the majority holds that “the Eighth Amendment does not require that . . . aggravating circumstances be further refined or weighed by a jury. . . . The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” Ante, at 306-307. That the majority cites no case to support this extraordinary conclusion is no surprise; careful analysis of our cases compels the conclusion that a jury must be able to consider the weight of both the aggravating and mitigating circumstances when choosing whether to impose a death sentence.

A

The Pennsylvania Legislature’s delineation of 12 aggravating circumstances represents an effort to comply with our command that “[bjecause of the uniqueness of the death penalty, ... it [may] not be imposed under sentencing procedures that creat[e] a substantial risk that it [will] be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (citing Furman v. Georgia, 408 U. S. 238 (1972)). In Furman, the Court held that vesting the' sentencer with unbridled discretion to determine whether or not to impose the death penalty resulted in a system in which there was no objective way to distinguish between defendants who received the death penalty and those who did not. See id., at 309-310 (Stewart, J., concurring) (death sentences at issue were “cruel and unusual in the same way that being struck by lightning is cruel and unusual. . . . [T]he petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed”); id., at 313 (White, J., concurring) (“[Tjhere is no meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not”). In Gregg, supra, however, the Court held that a State may impose the death penalty if the State adequately “guides” the sentencer’s discretion in determining the appropriate punishment. 428 U. S., at 195 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 222 (White, J., concurring in judgment). Thus, the Court has held that a State must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U. S. 862, 877 (1983). The legislature may narrow the death-eligible class at the guilt stage by defining the capital murder statute narrowly, see Lowenfield, v. Phelps, 484 U. S. 231, 244 (1988); Jurek v. Texas, 428 U. S. 262, 270 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), or at the sentencing stage by requiring the sentencer to find “aggravating factors” that objectively distinguish the murder from all other murders. Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980) (plurality opinion).

At the same time, however, the Court has recognized that the Eighth Amendment imposes a limit on a State’s ability to “guide” the sentencer’s discretion. On the same day that the Court upheld three death penalty statutes that “guided” the jury’s discretion in imposing this sentence, the Court invalidated two mandatory death penalty statutes. Woodson v. North Carolina, 428 U. S. 280 (1976); Roberts v. Louisiana, 428 U. S. 325 (1976). The Woodson plurality rejected the argument that Furman required removal of all discretion from the sentencer, holding that any consistency obtained by a mandatory statute would be arbitrary because the consistency would not take into account the individual circumstances of the defendant and the crime. Woodson, supra, at 304. See also Eddings v. Oklahoma, 455 U. S. 104, 112 (1982) (“By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule . . . recognizes that a consistency produced by ignoring individual differences is a false consistency”). A mandatory death penalty statute treats “all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.” Ibid. Thus, the Court held that the “fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Ibid, (citation omitted). See also Sumner, 483 U. S., at 85; Roberts, 431 U. S., at 637.

Woodson and its progeny are distinguishable from this case because the Pennsylvania statute allows the jury to consider mitigating circumstances. But once a Pennsylvania jury finds that no mitigating circumstances are proved by a preponderance of the evidence, it is required to impose the death penalty. The mandatory provision of the Pennsylvania statute may be effective in a smaller set of cases than the North Carolina statute at issue in Woodson. Nevertheless, the effect of the mandatory provision in both statutes is the same: it substitutes a legislative judgment about the severity of a crime for a jury’s determination that the death penalty is appropriate for the individual.

B

The majority is unconcerned that in this category of cases the mandatory provision deprives the defendant of an individualized sentencing determination. The nature of the individualized determination required by Woodson is derived from this Court’s recognition that the decision to impose the death penalty must reflect a reasoned moral judgment about the defendant’s actions and character in light of all the circumstances of the offense and the defendant’s background. See, e. g., Penry v. Lynaugh, 492 U. S. 302, 319 (1989); California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring). Just as a jury must be free to consider and weigh mitigating circumstances as independently relevant to the defendant’s moral culpability, see Penry, supra, at 319, a jury must also be able to consider and weigh the severity of each aggravating circumstance. The weight of an aggravating circumstance depends on the seriousness of the crime— a significant aspect of the defendant’s moral culpability. Thus, a reasoned moral response to the defendant’s conduct requires the consideration of the significance of both aggravating and mitigating factors. “[I]n the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death.” Turner v. Murray, 476 U. S. 28, 34 (1986) (opinion of White, J.) (emphasis added); see also Zant, 462 U. S., at 879 (“What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime”) (emphasis in original).

The majority cites only Lowenfield v. Phelps, 484 U. S. 231 (1988), for its conclusion that the jury need not consider the weight of the aggravating circumstance before imposing the death sentence. In Lowenfield, the Court upheld the Louisiana death penalty statute under which a jury could impose a death sentence even if the only aggravating factor found duplicated an element of the offense of capital murder. Id., at 244. The sole question the Court addressed was whether such an aggravating circumstance sufficiently narrowed the class of death-eligible defendants. As the majority notes today, ante, at 307, Lowenfield held that “[t]he use of ‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion.” 484 U. S., at 244. Nothing in Lowenfield suggests that a State may preclude a jury from weighing the strength of the aggravating factor. As the majority fails to recognize, under the Pennsylvania statute an aggravating circumstance does much more than “channel” the jury’s discretion: in the absence of mitigating factors, it mandates the death penalty.

This Court has never held that a legislature may mandate the death sentence for any category of murderers. Instead, a legislature’s role must be limited to the definition of the class of death-eligible defendants. A legislature does not, and indeed cannot, consider every possible fact pattern that technically will fall within an aggravating circumstance. Hence, the definition of an aggravating circumstance provides a basis for distinguishing crimes only on a general level; it does not embody the type of reasoned moral judgment required to justify the imposition of the death penalty. See Sumner v. Shuman, supra, at 78 (legislative judgment does not “provide an adequate basis on which to determine whether the death sentence is the appropriate sanction in any paHicular case”) (emphasis added). The Pennsylvania statute provides a stark example of this constitutional flaw. It permits the jury to find an aggravating circumstance if the killing was committed in the course of a felony. 42 Pa. Cons. Stat. § 9711(d)(6) (1988). A variety of murders fit under this aggravating circumstance. Since the Pennsylvania Supreme Court has interpreted this aggravating circumstance to include nonviolent felonies, Commonwealth v. Holcomb, 508 Pa. 425, 498 A. 2d 833 (1985), the aggravating circumstance covers a very wide range of cases. A jury, however, likely would draw a different inference about the culpability of the defendant — and therefore the propriety of the death sentence — if the murder were committed during a rape rather than (as here) during a $13 robbery. The majority today allows the legislature to preclude a jury from considering such factors in deciding whether to impose death.

Such a conclusion flies in the face of our reasoning in Sumner v. Shuman, 483 U. S. 66 (1987). In Sumner, we invalidated a statute that mandated death for a prisoner who committed murder while already serving a life term. Although the Court acknowledged the legislature’s power to determine that the crime was sufficiently serious to make the defendants eligible for the death penalty, the Court held that the legislature had no power to conclude that the sole fact that the defendant was serving a life sentence justified the death penalty in every such case. Id., at 78-81. As the Court explained:

“Past convictions of other criminal offenses can be considered as a valid aggravating factor in determining whether a defendant deserves to be sentenced to death for a later murder, but the inferences to be drawn concerning an inmate’s character and moral culpability may vary depending on the nature of the past offense. The circumstances surrounding any past offense may vary widely as well. Without consideration of the nature of the predicate life-term offense and the circumstances surrounding the commission of that offense, the label ‘life-term inmate’ reveals little about the inmate’s record or character. Even if the offense was first-degree murder, whether the defendant was the primary force in that incident, or a nontriggerman . . . , may be relevant to both his criminal record and his character. Yet under the mandatory statute, all predicate life-term offenses are given the same weight.” Id., at 81 (footnote omitted).

The majority dismisses Sumner as inapposite because the sentencing scheme in that case did not allow for the consideration of mitigating evidence. Ante, at 306, n, 4. But the discussion quoted above clearly relates to a legislature’s power to define aggravating circumstances and precedes any discussion of the significance of mitigating circumstances. In fact, we went on to state that “[n]ot only [do the defendant’s prior convictions] serve as incomplete indicators of the circumstances surrounding the murder and of the defendant’s criminal record, but also they say nothing of [mitigating circumstances].” 483 U. S., at 81-82. In Sumner, the Court invalidated the statute because it precluded the jury from considering mitigating factors and because it prevented the jury from determining whether certain crimes were serious enough to require the death penalty.

C

The Court’s suggestion, ante, at 303, that Jurek v. Texas, 428 U. S. 262 (1976), supports its holding in this case reveals a fundamental misunderstanding of petitioner’s claim. Although both the Texas and Pennsylvania statutes contain mandatory language, the Texas statute upheld in Jurek does not deprive the jury of its ability to determine the propriety of the death sentence in a particular case. In Texas, the class of death-eligible defendants is narrowed at the guilt stage because only five types of murder are classified as first-degree murder. See id., at 270. At the sentencing stage, the jury is instructed that it must impose a sentence of death if it answers the following two questions affirmatively: “(1) whether the conduct of the defendant that caused the death was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing criminal threat to society.” Id., at 269. These questions require the jury to do more than find facts supporting a legislatively defined aggravating circumstance. Instead, by focusing on the deliberateness of the defendant’s actions and his future dangerousness, the questions compel the jury to make a moral judgment about the severity of the crime and the defendant’s culpability. The Texas statute directs the imposition of the death penalty only after the jury has decided that the defendant’s actions were sufficiently egregious to warrant death.

The mandatory language in the Pennsylvania statute, however, does deprive the jury of any power to make such an independent judgment. The jury’s determination that an aggravating circumstance exists ends the decisionmaking process. In addition, whether an aggravating circumstance exists is generally a question of fact relating to either the circumstances of the offense, the status of the victim, or the defendant’s criminal record. In many cases, the existence of the aggravating factor is not disputed. Finding an aggravating circumstance does not entail any moral judgment about the nature of the act or the actor, and therefore it does not give the jury an opportunity to decide whether it believes the defendant’s particular offense warrants the death penalty. Because the mandatory language in the Pennsylvania statute deprives a defendant of an individualized sentencing hearing in a way that the Texas statute does not, Jurek in no way supports the Court’s conclusion that the Pennsylvania statute is constitutional.

Ill

The Court’s refusal to recognize that the “mandatory aspect” of the Pennsylvania statute deprives the defendant of an individualized sentencing hearing is contrary to reason. Rather than address the merits of petitioner’s claim, the majority summarily concludes that the Eighth Amendment is “satisfied” because the jury may consider mitigating evidence. Although our cases clearly hold that the ability to consider mitigating evidence is a constitutional requirement, it does not follow that this ability satisfies the constitutional demand for an individualized sentencing hearing. The “weight” of an aggravating circumstance is just as relevant to the propriety of the death penalty as the “weight” of any mitigating circumstances. The Court’s unarticulated assumption that the legislature may define a group of crimes for which the death penalty is required in certain situations represents a marked departure from our previous cases. The Court’s failure to provide any reasoning to reject a claim well grounded in our case law is always disturbing. An unexplained departure from fundamental principles in the death penalty context is inexcusable. I respectfully dissent.

IV

Even if I did not believe the Pennsylvania statute unconstitutionally deprives the jury of discretion to impose a life sentence, I would vacate petitioner’s sentence. I adhere to my belief that the death penalty is in all circumstances cruel and unusual punishment. Gregg v. Georgia, 428 U. S., at 227 (Brennan, J., dissenting).

       Only three Members of the Court expressly relied on the mandatory nature of the Texas sentencing scheme as one reason why it passed muster under Furman. See Jurek, 428 U. S., at 278 (White, J., joined by Burger, C. J. and Rehnquist, J., concurring in judgment). While Justices Stewart, Powell, and Stevens did not explicitly rely on the mandatory character of that scheme in upholding it, those Justices certainly did not believe the mandatory language posed any constitutional difficulties. See generally id., at 268-277.

       The Pennsylvania Supreme Court has construed § 9711(e) to allow consideration of any relevant mitigating evidence, even that falling outside the catchall provision of subsection (e)(8). Commonwealth v. Holcomb, 508 Pa. 425, 470, n. 26, 498 A. 2d 833, 856, n. 26 (1985) (plurality opinion), cert. denied, 475 U. S. 1150 (1986); see also Commonwealth v. Fahy, 512 Pa. 298, 315-316, 516 A. 2d 689, 698 (1986).

       The dissent states that our discussion of the facial validity of the Pennsylvania statute under Penry and Lockett is irrelevant because “[w]e did not grant certiorari to determine if the statute allows sufficient consideration of mitigating circumstances as required by Lockett. We granted certiorari to consider whether a State may mandate the death penalty when the jury finds no mitigating circumstances.” Post, at 316, n. 5. This statement is in error. The question presented reads as follows: “Whether the mandatory nature of the Pennsylvania death penalty statute renders said statute facially unconstitutional or renders the death penalty imposed upon petitioner unconstitutional because it improperly limits the full discretion the sentencer must have in deciding the appropriate penalty for a particular defendant.” Pet. for Cert. 2. The jury’s ability to consider mitigating evidence is indeed germane to this question.

       After receiving repeated warnings from the trial judge, and contrary advice from his counsel, petitioner decided not to present any proof of mitigating evidence during his sentencing proceedings. Asked to explain this decision by the trial judge, petitioner responded: “I don’t want anybody else brought into it.” App. 8. Nonetheless, the jury was specifically instructed that it should consider any mitigating circumstances which petitioner had proved by a preponderance of the evidence, and in making this determination the jury should consider any mitigating evidence presented at trial, including that presented by either side during the guilt phase of the proceedings. Id., at 13.

       Petitioner’s reliance on Sumner v. Shuman, 483 U. S. 66 (1987), is misplaced. There we held that a statute mandating the death penalty for a prison inmate convicted of murder while serving a life sentence without possibility of parole violated the Eighth and Fourteenth Amendments. Although noting that “[p]ast convictions of other criminal offenses can be considered as a valid aggravating factor in determining whether a defendant deserves to be sentenced to death for a later murder,” id,., at 81, we recognized that “the inferences to be drawn concerning an inmate’s character and moral culpability may vary depending on the nature of the past offense.” The sentencing scheme involved in that case, however, did not provide for the consideration of any mitigating circumstances. Id., at 67-68, n. 1.
      The dissent attempts to undermine our reliance on Jurek v. Texas, 428 U. S. 262 (1976), by arguing that the requirement of individualized sentencing was fulfilled under the Texas death penalty statute in a way not allowed by the Pennsylvania scheme through the jury’s consideration of special findings required to be made before death could be imposed. Post, at 320-323. The dissent ignores the fact that the three-justice opinion in Jurek concluded that the Texas statute fulfilled the requirement of individualized sentencing precisely because one of the special findings had been construed by Texas courts to permit the consideration of mitigating evidence. Jurek, supra, at 272 (opinion of Stewart, Powell and Stevens, JJ.) (“Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors”). Nowhere in that opinion was it implied that the mandatory feature of the Texas statute was constitutional only because a jury could still weigh other factors under a particular construction of the special findings when it found no mitigating circumstances.

       The aggravating circumstances are as follows:
      “(1) The victim was a fireman, peace officer, or other public servant concerned in official detention . . . , who was killed in the performance of his duties.
      “(2) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.
      “(3) The victim was being held by the defendant for ransom or reward, or was held as a shield or hostage.
      “(4) The death of the victim occurred while the defendant was engaged in the hijacking of an aircraft.
      “(5) The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.
      “(6) The defendant committed the killing while in the perpetration of a felony.
      “(7) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.
      “(8) The offense was committed by means of torture.
      “(9) The defendant has a significant history of felony convictions involving the use or threat of violence to the person.
      “(10) The defendant has been convicted of another Federal or State offense committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
      “(11) The defendant has been convicted of another murder, committed either before or at the time of the offense at issue.
      “(12) The defendant has been convicted of voluntary manslaughter . . . committed either before or at the time of the offense at issue.” 42 Pa. Cons. Stat. § 9711(d) (1988).

       The statute also provides that “[t]he verdict must be a sentence of death ... if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” § 9711(c)(l)(iv). Since the jury found no mitigating circumstances in this ease, petitioner challenges the constitutionality of only the first part of the provision.

       Nor did the instructions on mitigating evidence indicate that the jury was free to choose a life sentence even if it did not find any mitigating circumstances. The trial judge made no attempt to define the concept of mitigation for the jury. When the jury pressed for a definition of mitigation, the judge stated that “ftlhe Legislature has determined what constitutes mitigating circumstances” and proceeded to list the statutory mitigating factors. App. 16. When pressed further for a definition of the last mitigating circumstance — “any other evidence of mitigation concerning the character of the defendant and the circumstances of his offense” — the judge said, “[tjhis is pretty broad and allows you a great latitude in determining what you might consider to be a mitigating circumstance.” Id., at 17. The trial judge did, however, emphasize that the defendant was required to prove mitigating factors by a preponderance of the evidence. See id., at 12 (“[I]f you find that the evidence of mitigation is greater than the other way by a preponderance of the evidence, which means simply to exceed in weight, then you would make a finding of mitigat[ion]”). However, because petitioner had not presented any affirmative evidence of mitigation, the judge stressed that the evidence “should be . . . something that you can draw from the record of this case as to his character or the record of the defendant or the circumstances of his offense.” Id., at 17.

        Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek, v. Texas, 428 U. S. 262 (1976).

       For this reason, the Court’s discussion of the facial validity of the statute under Penry v. Lynaugh, 492 U. S. 302 (1989), and Lockett v. Ohio, 438 U. S. 586 (1978), is irrelevant. Ante, at 305. We did not grant certiorari to determine if the statute allows sufficient consideration of mitigating circumstances as required by Lockett. We granted certiorari to consider whether a State may mandate the death penalty when the jury finds no mitigating circumstances. The jury’s ability to consider mitigating evidence is not germane to the question presented.

       The State argues that allowing the jury to consider the weight of the aggravating circumstance will result in the type of unfettered discretion condemned in Furman. This argument was explicitly rejected when the Court upheld the Georgia death penalty statute even though the senteneer was given complete discretion to impose a life sentence after finding an aggravating cirumstance. See Zant, 462 U. S., at 875; Gregg, supra, at 199 (joint opinion of Stewart, Powell, and Stevens, JJ.). As the Court noted in Zant, “specific standards for balancing aggravating against mitigating circumstances are not constitutionally required.” Zant, supra, at 876, n. 13. Allowing the jury to weigh the aggravating circumstance as a means of making an individualized sentencing determination no more permits the jury to exercise unbridled discretion than allowing the consideration of mitigating circumstances. Woodson held that an individualized determination that the death sentence is appropriate does not violate Furman. Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (plurality opinion).

       The Louisiana statute provides: “ ‘A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed.’” 484 U. S., at 242 (quoting La. Code Crim. Proc. Ann., Art. 905.3 (West 1984)). The Louisiana law permitted the jury to consider the weight of the aggravating circumstance in a way that the Pennsylvania statute does not.

       The State argues that Pennsylvania law allows the jury to consider the lack of severity of an aggravating factor as a mitigating factor. Such a counterintuitive argument is without merit. It is preposterous to assume that a jury that is instructed that a certain fact — e. g., the murder was committed during a robbery — is the reason to impose the death penalty will simultaneously believe it can consider that same fact as a reason not to impose a death sentence. At the very least, a jury would not understand that without an instruction.

       Different Members of the Court have had different interpretations of Jurek. Compare Penry v. Lynaugh, 492 U. S., at 316, with id., at 354-358 (Scalia, J., joined by Rehnquist, C. J., White, and Kennedy, JJ., concurring in part and dissenting in part); Franklin v. Lynaugh, 487 U. S. 164, 180, and n. 10 (1988) (plurality opinion). But until now I thought that all Members of the Court agreed that the holding of Jurek was contained in the joint opinion of Justices Stewart, Powell, and Stevens, which concluded that the statute was constitutional because it adequately narrowed the class of murderers subject to the death penalty and because the questions presented to the jury would be interpreted broadly enough to allow the jury to consider any relevant mitigating circumstance. Jurek, 428 U. S., at 272-273 (joint opinion of Stewart, Powell, and Stevens). Indeed, our holding last Term in Penry relied on this interpretation of Jurek. Pem-y, supra, at 316. It is curious, therefore, that the Court relies on Justice White’s concurrence in Jurek to support its conclusion that the Pennsylvania statute is constitutional. Justice White, joined by Chief Justice Burger and Justice Rehnquist, concluded that the mandatory language in the Texas statute rendered the statute constitutional. Jurek, supra, at 278. Indeed, Justice White’s concurrence in Jurek may have depended on the view that the Texas statute was constitutional precisely because it deprived the jury of a ll discretion in determining sentence. See Roberts v. Louisiana, 428 U. S. 325, 358 (1976) (White, J., joined by Burger, C. J., and Blackmun and Rehnquist, JJ., dissenting) (“[Slurely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal’s character is such that he deserves death”); Woodson, 428 U. S., at 306 (White, J., joined by Burger, C. J., and Rehnquist, J., dissenting). But a majority of the Court has rejected that reasoning, see Sumner v. Shuman, 483 U. S. 66, 85 (1987), as well as that reading of the Texas statute. See Penry, supra, at 316.

       A third question applies only if raised by the evidence: “ ‘whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’” Jurek, supra, at 269.

       See 42 Pa. Cons. Stat. §§ 9711(d)(2), (4), (6), (7), (8) (1988).

       See §§ 9711(d)(1), (3), (5).

       See §§ 9711(d)(9) — (12).

       The finding of three of the statutory aggravating circumstances requires more than the finding of facts. For example, the State may prove that the defendant created a grave risk of harm to others, that the killing was marked by torture, or that the defendant had a significant history of felony convictions involving the use of violence. §§ 9711(7), (8), (9). It is arguable that the jury’s consideration of these aggravating circumstances allows the jury to conclude that the crime does not warrant the death penalty. However, unlike in Texas, the jury in every ease is not required to consider these aggravating circumstances. Thus, at least in cases such as this one where these aggravating circumstances are not proffered, the jury has no ability to make any judgment about the seriousness of the crime.

       The Court’s language is distressingly casual. We have long held that the ability of the sentence!’ to consider mitigating circumstances is a necessary — not just a sufficient — condition for the imposition of the death penalty. The defendant’s right to have a jury consider mitigating circumstances is a fundamental part of the jury’s role in a capital sentencing case which this Court has stringently protected. See Penry v. Lynaugh, supra, at 319; Mills v. Maryland, 486 U. S. 367, 377 (1988); Hitchcock v. Dugger, 481 U. S. 393, 399 (1987); Skipper v. South Carolina, 476 U. S. 1, 8 (1986); Eddings v. Oklahoma, 455 U. S. 104, 116 (1982); Lockett v. Ohio, 438 U. S., at 605.


source: Caselaw Access Project

author: Justice White Justice Stevens, Justice Kennedy, Justice Brennan,

license: Public Domain

text:
    MARYLAND v. BUIE
    No. 88-1369.
    Argued December 4, 1989
    Decided February 28, 1990

      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. 337, and Kennedy, J., post, p. 339, filed concurring opinions. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 339.

      Dennis M. Sweeney, Deputy Attorney General of Maryland, argued the cause for petitioner. With him on the briefs were J. Joseph Curran, Jr., Attorney General, Gary E. Bair, Mary Ellen Barbera, and Ann N. Bosse, Assistant Attorneys General, and Alexander Williams, Jr.

      Lawrence S. Robbins argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Kathleen A. Felton.

      John L. Kopoloiv argued the cause for respondent. With him on the brief were Alan H. Murrell, Michael R. Braudes, Nancy S. Forster, and Gary S. Offutt.

        Gregory U. Evans, Daniel B. Hales, Emony A. Plitt, Jr., Judith A. Ronzio, George D. Webster, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.

        Ira Reiner, Hamy B. Sondheim, and Eugene D. Tavris filed a brief for the Appellate Committee of the California District Attorneys Association as amicus curiae.

   Justice White

delivered the opinion of the Court.

A “protective sweep” is a quick and limited search of 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 warranted]’ the officer in believing,” Michigan v. Long, 463 U. S. 1032, 1049-1050 (1983) (quoting Terry v. Ohio, 392 U. S. 1, 21 (1968)), that the area swept harbored an individual posing a danger to the officer or others. We accordingly 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.

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).

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, 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, 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 bright-line 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 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.

Ill

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, 588 (1983); Delaware v. Prouse, 440 U. S. 648, 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, at 619-620; Griffin v. Wisconsin, 483 U. S. 868, 873 (1987); New Jersey v. T. L. O., 469 U. S. 325, 340-341 (1985); Terry v. Ohio, 392 U. S., at 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 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 21 (quoting Camara v. Municipal Court of San Francisco, 387 U. S. 523, 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 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 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 21, and not on a mere “inchoate and unparticularized suspicion or ‘hunch,’” id., at 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: “[T]he 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 1049-1050 (quoting Terry, supra, at 21). The Long Court expressly rejected the contention that Terry restricted preventative searches to the person of a detained suspect. 463 U. S., at 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 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 “[ejven 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, at 24-25. But we permitted the intrusion, which was no moré than necessary to protect the officer from harm. Nor do we here suggest, as the State 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. 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.

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. 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.

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 754, 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 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 “automatic],” 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 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.

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. Officer Frolich, who conducted the search, 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 3-day prearrest surveillance of Buie’s home. Id., at 4. The Maryland .Court of Appeals 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 “look[ed] in” the already open basement door, ante, at 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. 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., 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, 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 Appeals suggested that Officer Frolich’s search could survive a “reasonable suspicion” test, 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.

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 24, and the “brief, though far from inconsiderable, intrusion upon the sanctity of the person.” Id., at 26.

Terry and its early progeny “permitted] only brief investigative stops and extremely limited searches based on reasonable suspicion.” United State v. Place, 462 U. S. 696, 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, 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 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 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 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, at 12. In any event, 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 intérests 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, Eastern District of Michigan, 407 U. S. 297, 313 (1972). 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 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 335-336. But these spatial and temporal 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 336, a protective sweep is much closer to it than to a “limited patdown for weapons” or a “ ‘frisk’ of an automobile.” Ante, at 332. 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.

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.

       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.

       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 “[ojfficers 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 Tory 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 111. Summer's 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 ease 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.

       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 325, or with our refusal in Hicks to sanction a standard less than probable cause on the ground that the search of a stereo was a “cursory inspection,” rather than a “full-blown search,” id., at 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, supra, at 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.

       Buie’s attorney asked, ‘“You weren’t worried about there being any danger or anything like that?’ ” Officer Rozar answered, “ ‘No.’ ” App. 9.

       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.

       The Court has recently relied on Terry to relax the warrant and probable-cause 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).

       Individual police officers necessarily initiate street encounters without advance planning “for a wide variety of purposes.” Terry v. Ohio, 392 U. S., at 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.

       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 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, 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”).

       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 ease 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 336.

       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, 589 (1980).

       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 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, at 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.