May police officers, prior to executing a search warrant, follow and detain a person seen leaving the premises after that person leaves the immediate area?
Chunon L. Bailey was detained approximately a mile from his residence after two police officers observed him leave his home prior to the execution of a search warrant. The officers brought Bailey back to his home and arrested him after the search turned up drugs and a gun. Bailey seeks to vacate his conviction, arguing that the detention violated his Fourth Amendment right against unreasonable search and seizure. In this case, the Court must resolve a circuit split surrounding the application of Michigan v. Summers, which held that police may detain an occupant outside of the premises to be searched so long as the detention is reasonable. Bailey argues that Summers should not be extended to situations where the occupant has left the immediate vicinity of the premises to be searched, as this expansion would further none of the justifications described by the Court in that case. In response, the United States argues that the reasoning underlying Summers justifies this detention and that any potential Fourth Amendment issues can be resolved by a reasonableness test. If the Supreme Court sides with the United States and affirms the decision below, the scope of police power to detain occupants prior to the execution of a search warrant will be significantly expanded.
Questions as Framed for the Court by the Parties
Whether, pursuant to Michigan v. Summers, 452 U.S. 692 (1981), police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
On July 28, 2005, two officers of the Suffolk County Police Department executed a search warrant for a basement apartment at 103 Lake Drive in Wyandanch, New York. According to the warrant, a man known as “Polo” occupied the apartment, and the object of the search was a .380 handgun. When the officers arrived at the address, they observed two men, petitioner Chunon L. Bailey (“Bailey”) and Bryan Middleton, leaving the house. Both men matched the description of Polo as provided by a confidential informant. The officers chose not to confront the men in front of the house, instead following them as they entered a car and drove away.
About a mile away from 103 Lake Drive, the officers stopped the car and conducted a pat-down of the two men to search for weapons. Both men identified themselves and confirmed that the 103 Lake Drive address was Bailey’s residence. The officers handcuffed the men, informing them that they were not under arrest but only being detained pursuant to a search warrant. Bailey responded that he did not live at the Lake Drive address and that he would not cooperate with the investigation. The officers then transported the two men back to 103 Lake Drive where the officers found drugs and a gun, and an officer later found that one of Bailey’s keys opened the basement door. The officers arrested both men less than ten minutes after they first stopped Bailey’s vehicle.
Before trial, Bailey moved to suppress both the physical evidence and his statements to police, arguing that his detention and the resulting search violated the Fourth Amendment. Judge Joseph Bianco of the U.S. District Court for the Eastern District of New York found that the detention was lawful under the Supreme Court’s decisions in both Michigan v. Summers, and Terry v. Ohio. At trial, the jury convicted Bailey of possession with intent to distribute cocaine base and possession of a firearm in furtherance of a drug trafficking crime.
Bailey filed a motion to vacate his sentence under 28 U.S.C. § 2255. He argued that his trial counsel was ineffective for failing to raise the existence of other possible access points to the door from which the officers first observed Bailey exit. Judge Bianco denied the motion, reasoning that even with this information, the officers had the reasonable suspicion necessary to detain Bailey. Accordingly, Bailey’s counsel’s failure to raise the point could not have prejudiced the outcome of the trial as required by Strickland v. Washington. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed, holding that under Summers, Bailey’s detention was constitutional. The Supreme Court granted certiorari on June 4, 2012 to determine whether officers may detain an individual that has left the immediate premises of a location named in a search warrant.
The dispute in this case centers on the lower courts’ interpretations of Michigan v. Summers and under what circumstances the police can detain residents of the premises during execution of a search warrant without violating the Fourth Amendment. The application of the Summers rule is split throughout the Courts of Appeals. The Court’s ruling in this case will impact how future warranted police searches are undertaken, especially in situations where residents of the premises leave the property before the search has commenced.
The Fourth Amendment to the U.S. Constitution states, in relevant part: “The right of the people to be secure in their … houses … against unreasonable searches and seizures, shall not be violated….” In Michigan v. Summers, the Supreme Court reiterated the logic of their prior decisions and stated that any exception to the Fourth Amendment would only be reasonable if based on probable cause. In that case, the Court upheld Summers’s detention outside his house prior to execution of a search warrant as reasonable in light of the Fourth Amendment, finding it to be based on probable cause. The Court stated that where the police have probable cause to believe that someone in the house is engaging in a crime, the police may detain the house’s occupants on suspicion of criminal activity, subject to a determination of reasonableness. In determining the reasonableness of detention in cases where a police are executing a search warrant, the Court stipulated three relevant law enforcement interests: “(1) ‘preventing flight in the event that incriminating evidence is found’; (2) ‘minimizing the risk of harm to the officers’; and (3) facilitating ‘the orderly completion of the search.’”
In its opinion, the Second Circuit noted the circuit split among the other Courts of Appeals on this issue, with the Fifth, Sixth, and Seventh Circuits previously ruling in favor of an extension of Summers on similar facts and the Eighth and Tenth Circuits previously ruling against such an extension. The circuit split suggests that Bailey will have to distinguish his case from Summers and those of the Fifth, Sixth, and Seventh Circuits in order to prevail. As previously noted, the Second Circuit sides with the Fifth, Sixth, and Seventh Circuits in extending Summers, as it held that Summers was intended to cover situations like Bailey’s where detention was made to protect the law enforcement interests of officer safety and evidence preservation.
PREVENTION OF FLIGHT
The first interest, prevention of flight upon the discovery of incriminating evidence, is the most hotly contested between the two parties. Bailey argues that this interest deserves only minimal weight because the Court in Summers did not determine that this factor alone is sufficient to justify detention. In support of his contention, Bailey refers to Justice Stewart’s dissent in Summers, noting that detention prior to discovery of incriminating evidence would not be based on probable cause, so keeping an individual nearby in case incriminating evidence is found would go against the probable cause principle.
In its brief, the United States disagrees with Bailey’s contention that prevention of flight is only a secondary concern. In the United States’ view, prevention of flight is at least equal to if not more important than the other factors in a Fourth Amendment reasonableness analysis. In support, the United States points to the majority opinion in Summers describing the police interest in preventing flight to be both “obvious” and “legitimate.” Additionally, the United States criticizes Bailey’s reference to the dissenting opinion in Summers, as the majority opinion is the rule that comes from that case.
THE ORDERLY COMPLETION OF THE SEARCH
The second interest in Summers is the orderly completion of the search. Bailey argues that there is almost no benefit to having the resident present during the search, so detainment cannot possibly further this interest. According to Bailey, the officers’ attention will focus on the detained resident instead of the search for incriminating evidence, where it should be. Bailey also dismisses the United States’ point that having the resident present during the search would be useful as they could potentially assist officers by opening any locked doors or containers. Bailey thinks that such assistance is unlikely, and it would provide only a modest aid to the search.
The United States’ responds that the decision about the potential benefits of detaining the resident lies with the officers at the scene. Furthermore, the United States points out that any distraction Bailey foresees can be virtually negated by effectively restraining the resident prior to the search. Overall, the United States sees a bright line rule as potentially harmful and believes that officers, not courts, should make decisions of reasonableness.
MINIMIZING RISK OF HARM TO OFFICERS
The third interest is minimizing the risk of harm to officers. In Summers, the Court reasoned that officers are allowed to detain occupants while the search is conducted because the execution of a warrant could lead to violence. Bailey argues that since this case involved a resident who had left the premises before the search commenced, there was no threat violence. In response to the United States’ contention that a departed resident could return at any time, thus again posing a threat to the officers, Bailey points out that many search warrants are executed by special teams of trained officers, negating any real risk to the officers. Bailey further notes that the United States does not cite an example where a returning resident successfully attacked officers conducting a search warrant of his residence.
The United States points out that in this case, the purpose of the search warrant was to find both narcotics and a gun. They suggest that the potential presence of a gun at the residence increases the risk for harm to the officers. Additionally, the United States argues that enforcing a strict rule against detainment in this case would force law enforcement to take unnecessary risks, which could be avoided by leaving the detainment decision up to the officers, subject to a determination of reasonableness.
The outcome of this case will define the scope of police officers’ ability to detain the occupants of a location subject to a search warrant. In Michigan v. Summers, the Supreme Court held that officers may detain an occupant leaving the premises of a location described in a search warrant. This created a narrow exception to the rule that, under the Fourth Amendment, the seizure of a person must rest on probable cause. In this case, the Second Circuit held that the Summers exception does not exist exclusively in the immediate vicinity of the premises, and that police need only stop an occupant “as soon as practicable.”
Here, petitioner Chunon Bailey and Amici argue that the Second Circuit’s standard is undesirable for several reasons. First, Bailey states that it is not justified by the reasoning underlying the Summers decision. Second, unlike Summers, Bailey argues that the Second Circuit’s standard is vague and could allow law enforcement officers to detain any person associated with certain premises regardless of their level of suspicion. Finally, according to Bailey, such a standard will permit far more intrusion than Summers contemplated.
Respondent the United States defends the Second Circuit’s standard, arguing that all of the reasons underlying Summers apply equally when the occupant is detained outside the immediate vicinity of the actual premises. The government also rejects the notion that the new standard will be more difficult to administer than Summers, stating that the idea that police will be able to stop occupants anywhere is unfounded. It also contends that off-site detentions of occupants are no more intrusive than on-site detentions.
Bailey argues that the detention of an occupant away from the premises to be searched does not serve to protect the officers, nor does it help facilitate the search itself. Further, Bailey states that the remaining justification, preventing flight, is not sufficient absent the other two, since it would allow detentions based on the prospect of finding probable cause during the search. According to Bailey, accepting this justification alone would allow “anticipatory arrests” merely for the “convenience” of police, which Bailey argues cannot be authorized under the Fourth Amendment. The National Association of Federal Defenders (“NAFD”) points out that there is no empirical data to suggest that police face any safety risk when occupants leave a premises and then return while a search is underway. Furthermore, NAFD notes that neither state lawmakers nor law enforcement policymakers have sought police authority to detain occupants away from premises subject to a search warrant.
The United States counters that each of the justifications for Summers applies equally in Bailey’s detention and others like it. First, the government argues that an occupant who has left the premises may still flee, and preventing flight can independently justify a detention. In addition, the government states that an occupant who has left may still return and interfere with a search or harm officers. Finally, the United States asserts that effecting a stop away from the premises may assist the investigation by preventing others from being alerted to the police’s presence, and police will not be forced to begin investigations before they have all the necessary information.
Bailey rejects the Second Circuit’s requirement that a detention may occur “as soon as reasonably practicable,” since it departs from Summers’ bright line rule and will lead courts to second-guess police determinations about when to detain occupants. More specifically, amici the American Civil Liberties Union (“ACLU”), New York Civil Liberties Union (“NYCLU”), and the Cato Institute express the concern that adopting the Second Circuit’s standard will allow police to use any search warrant to detain former occupants anywhere. The ACLU, NYCLU, and the Cato Institute state that the “as soon as practicable” standard is at odds with both the Fourth Amendment and with Summers while providing no guidance or benefit to law enforcement.
The United States counters that an “immediate vicinity” requirement proposed by Bailey would be no easier for courts to apply than the one proposed by the government. Either way, according to the United States, courts will be forced to make case-by-case factual determinations. Under the government’s proposed standard, the United States asserts, the inquiry will be about reasonableness, keeping in line with Summers. The United States argues that Bailey’s standard, on the other hand, will hamper police efforts in many situations. Moreover, the United States urges that the reasonableness requirement should allay concerns that police will be permitted to stop occupants wherever they are found.
Bailey also contends that a detention in public is far more intrusive than one that occurs in private on the premises. He argues that a public detention subjects the occupant to “all the indignity of a full-fledged arrest” and focuses the attention of officers on the individual rather than the premises.
The United States argues that, regardless of where a detention takes place, the interference with the detainee’s liberty is the same. The government notes that the Summers Court rejected the argument that a detention in public view is more intrusive than one that occurs in private. Indeed, in many cases, the government suggests that a detainee may prefer to be detained in front of strangers than in front of family, friends, and neighbors in a private setting.
In this case, the Supreme Court will resolve a circuit split on whether police, prior to executing a search warrant, may detain an occupant of the premises once that occupant has left the immediate vicinity of the premises to be searched. The Court will decide whether the reasoning of Michigan v. Summers can cover detentions occurring away from the premises to be searched. This decision will determine the geographic scope of officers’ power to detain an individual in connection with a search warrant, as well as the kind of inquiry courts will make determining whether police have exceeded that power.