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The Authority to Detain Incident to Search Warrant Execution

Thursday, February 4, 2016

By Larry E. Holtz, Esq.

Source: Holtz Learning Centers

In Bailey v. United States (US 2013), the United States Supreme Court held that the categorical authority to detain a person “incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.” 

THE CASE:  At 8:45 p.m., local police obtained a warrant to search a residence for a .380-caliber handgun. A confidential informant reported that he observed the gun when he was at the apartment to purchase drugs from “a heavy set black male with short hair” known as “Polo.”

As officers began preparations for executing the warrant, two detectives were conducting surveillance in an unmarked car outside the residence. About 9:56 p.m., the detectives observed two men—later identified as defendant Chunon Bailey and Bryant Middleton—leave the target premises and enter a car parked in the driveway. “Both matched the general physical description of ‘Polo’ provided by the informant. There was no indication that the men were aware of the officers’ presence or had any knowledge of the impending search. The detectives watched the car leave the driveway. They waited for it to go a few hundred yards down the street and followed.” Meanwhile, the search team executed the search warrant at the apartment.

The detectives followed Bailey’s car for about a mile before pulling the vehicle over in a parking lot by a fire station. “They ordered Bailey and Middleton out of the car and did a patdown search of both men. The officers found no weapons but discovered a ring of keys in Bailey’s pocket.” The keys ultimately linked Bailey to the target residence. The detectives placed both men in handcuffs and advised them that they were “being detained incident to the execution of a search warrant.”

By the time the group returned to the target premises, “the search team had discovered a gun and drugs in plain view inside the apartment. Bailey and Middleton were placed under arrest, and Bailey’s keys were seized incident to the arrest.”

Bailey moved to suppress the apartment key and the statements he made when stopped by the detectives, arguing that the evidence was the fruit of an unreasonable seizure. In this appeal, the United States Supreme Court agreed.

THE LAW:  In Michigan v. Summers, 452 U.S. 692 (1981), the Court set forth a rule permitting officers “executing a search warrant ‘to detain the occupants of the premises while a proper search is conducted.’ ” The officer’s “authority to detain incident to a search is categorical; it does not depend on the ‘quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.’ ”

In Summers and other similar cases, the occupants detained were found within or immediately outside the residence at the moment the police officers executed the search warrant. Here, however, Bailey left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. Thus, Bailey was far beyond the “immediate vicinity” of the premises being searched.

In Summers, the Court recognized “three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant.” These include: (1) officer safety; (2) facilitating the orderly completion of the search; and (3) preventing flight.

According to the Court, “of the three law enforcement interests identified to justify the detention in Summers, none applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. * * * The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.”

Clearly, when “law enforcement officers execute a search warrant, safety considerations require that they secure the premises, which may include detaining current occupants. By taking ‘unquestioned command of the situation,’ the officers can search without fear that occupants, who are on the premises and able to observe the course of the search, will become disruptive, dangerous, or otherwise frustrate the search.”

In this case, “Bailey had left the premises, apparently without knowledge of the search. He posed little risk to the officers at the scene. If Bailey had rushed back to his apartment, the police could have apprehended and detained him under Summers. There is no established principle, however, that allows the arrest of anyone away from the premises who is likely to return.”

“In Summers, the Court recognized the authority to detain occupants incident to the execution of a search warrant not only in light of the law enforcement interests at stake but also because the intrusion on personal liberty was limited. The Court held detention of a current occupant ‘represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.’ Because the detention occurs in the individual’s own home, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.”

In this case, the detention “was more intrusive than a usual detention at the search scene. Bailey’s car was stopped; he was ordered to step out and was detained in full public view; he was handcuffed, transported in a marked patrol car, and detained further outside the apartment. These facts illustrate that detention away from a premises where police are already present often will be more intrusive than detentions at the scene.”

Accordingly, the Court held that a “spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. * * * Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification.” Here, Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question. In closer cases however, “courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.”

“If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect’s particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention.” For example, had the search team radioed the detectives about the gun and drugs discovered at the target premises as they stopped Bailey and Middleton, this may have provided them with probable cause for an arrest.

Significantly, the question in this case “is whether Summers applies at all. It applies only to seizures of “occupants” —that is, persons within “the immediate vicinity of the premises to be searched.” Bailey was seized a mile away. Ergo, Summers cannot sanction Bailey’s detention. It really is that simple.” Thus, officers need only ask one question to determine whether Summers applies: “Was the person seized within ‘the immediate vicinity of the premises’ to be searched?”


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