Friday, November 02, 2012
Supreme Court 2012: Bailey v. United States and Detention During a Search Warrant
Thanks to Danny and the Prawfs folks for having me back this month. I plan to post a little on the fall law review submission process like I did on my last stint, but first I wanted to report on an interesting (and potentially important) criminal procedure case that the Supreme Court heard yesterday.
The Supreme Court heard arguments in Bailey v. United States (Docket No. 11-770) yesterday rescheduled from October 30) that presented the question of whether a police officer, incident to the execution of a search warrant, may detain a former occupant who has left the immediate vicinity of the premises.
The real question in this case is how far with the Court will expand or limit the rule set out in Michigan v. Summers. Michigan v. Summers adopted a categorical rule that police may detain an occupant of the immediate premises incident to the execution of a search warrant. The Court is now asked to decide whether to extend the Summers rule to allow police to detain, incident to the execution of a search warrant, a former occupant who has left the immediate vicinity of the premise and has driven almost a mile away and handcuff and return him to the premises while executing the warrant.
The brief facts here are that detectives obtained a “no-knock” warrant to search a basement apartment based on a tip from a confidential informant that the apartment was occupied by an individual known as “Polo, a heavy set black male with short hair” who had a .380-caliber handgun, which was the object of the warrant. Before the warrant was issued, two detectives arrived at the house in an unmarked police vehicle to survey the premises. Another team of officers arrived shortly after to execute the warrant. When detectives saw two men fitting the description of “Polo” leave the premises, they followed them out of the driveway and pulled their car over about a mile down the road. They conducted pat-down searches of both men and then returned them to the basement apartment in handcuffs in the back of the police car. The search of the apartment revealed ammunition, drugs and drug-related paraphernalia in plain view, though no .380-caliber handgun was found. In determining whether the evidence should be suppressed, the Court considered whether these individuals were properly detained under Michigan v. Summers even though they were apprehended about a mile away from the premises.
The rationale under Michigan v. Summers for detaining individuals while executing a search warrant included officer safety, facilitating the orderly completion of the search, and the interest in preventing flight. The major dispute in this case is how broadly to interpret the Summers rule and whether its purposes still apply to an occupant who is no longer at the place the warrant is executed. Petitioner contends that the three justifications underlying the adoption of the categorical rule in Summers are not applicable here, because a person who has left the immediate vicinity of the premises poses minimal risk to officers executing the warrant.
During oral arguments, the Justices pressed the government on this issue. The government argued that the officers face a risk when they see individuals leaving the location of a search that they may return at any time to the premises while the officers are conducting the search. But during arguments, Justice Sotomayor pointed out that there is always a threat that the owner of a home will return while police are effectuating a warrant and this is precisely the reason why officers may employ two teams of officers—as they did in this case—one to survey and the other to conduct the search.
The government on the other hand focused its briefs and arguments on the realities for law enforcement not being consistent with strict limitations of the Summers rule. First, the government notes that Summers in dicta rejected a geographic limitation on the detention of individuals at the premises by viewing “the fact that [the defendant] was leaving his house as lacking any constitutional significance.” This means that the detention may take place outside the residence itself, rendering the petitioner’s argument to the contrary moot. Second, the government argued that, under the reasoning set forth in Summers, when officers observe an occupant depart the premises, they have an articulable suspicion to detain the occupant because the existence of a valid search warrant gives rise to the inference that someone inside the home is committing a crime. Both these explanations undermine the need for a geographic limitation on Summers. In oral argument, though, the Justices pressed petitioner and the government on this issue to determine what standard should apply in limiting police in detaining
individuals when effectuating a search warrant.
The Court’s decision in Bailey v. United States is likely to have a number of meaningful ramifications. From the outset, it will resolve a deepening divide in the circuit courts. In addition to the Second Circuit in the opinion below, three courts— the Fifth, Sixth, and Seventh Circuits—have chosen to extend Summers based on fact pattern substantially similar to that of the case at bar. Two courts—the Eight and TenthCircuits—have read Summers narrowly and held that the rule does not apply outside the fact pattern presented in that case.
It is somewhat unclear what practical impact a holding in either direction would have on police work. The government lists several cases and evidence from FBI reports which document instances of individuals coming to a location where a search warrant is being executed and causing serious injury or death to one or more of the law enforcement officials on site. However, as the petitioner notes, the government does not cite an instance in which an individual who once occupied a premises returned during the execution of a search warrant. Further, the government argues that cabining Summers to its facts would require that police take a “now-or-never” approach to warrant execution and detention; that is, either execute a warrant prematurely to detain occupants of the premises, or allow the occupants to leave outright. This may or may not be a completely accurate depiction of the law enforcement landscape, however. As the ACLU notes in its amicus brief, police have several alternatives, including surveilling and following the suspect until they develop probable cause to detain and subsequently search the individual for contraband, or making a Terry stop based on reasonable suspicion for erratic driving or for obvious attempts to avoid police contact. Because the government does not present much by way of firm, reliable evidence of how this rule would disrupt (or enhance) police practice, the impact on subsequent police activity is difficult to predict. Regardless, it appears from oral argument that the Supreme Court is looking for a rule that may give clear guidance to officers on when they can and cannot detain individuals while executing a warrant.
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