On February 19, the Supreme Court held that the Summers rule, which allows officers executing a search warrant to detain the occupants of the premises, is spatially constrained and limited to the immediate vicinity of the premises to be searched. Bailey v. United States __S.Ct.__, 2013 WL 598438 (2013). KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a concurring opinion, in which GINSBURG and KAGAN, JJ., joined. BREYER, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.
[The Facts]
Chunon L. Bailey and Bryan Middleton were observed by law enforcement officers as they were leaving an apartment later determined to be Bailey’s. Other officers had obtained a search warrant for the apartment and were waiting to execute it. Bailey and Middleton were not aware of this. They left in Bailey’s car and were stopped by the officers after they had driven for about five minutes. The officers did a pat down search of both men. They found no weapons; however, they discovered a ring of keys in Bailey’s pocket. The officers advised Bailey and Middleton that they were going to search the apartment. Bailey stated, “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.” The officers then took Bailey and Middleton back to the apartment. By the time they returned, the search team had discovered—in plain view—drugs and a gun inside the apartment. Bailey and Middleton were each placed under arrest and Bailey’s keys were seized incident to the arrest. One of these keys opened the door to the apartment’s basement.
[In the Courts Below]
Bailey was charged with drug and firearm offenses. His lawyer filed a motion to suppress the apartment key and the statements that Bailey had made when he was first stopped by the officers. United States District Judge Joseph Frank Bianco of the Eastern District of New York denied the motion to suppress, finding that Bailey’s detention was permissible as a detention incident to the execution of a search warrant; and, in the alternative, that Bailey’s detention was lawful as an investigatory detention supported by reasonable suspicion under Terry v. Ohio.
The United States Court of Appeals for the Second Circuit ruled that Bailey’s detention was proper and affirmed denial of the suppression motion. The Court did not address the district court’s alternative holding that the stop was permitted under Terry.
Justice Kennedy’s opinion contains, in part, the following:
[The Fourth Amendment]
This Court has stated “the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause” to believe that the individual has committed a crime. Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
[The Summers Rule]
In Summers, the Court defined an important category of cases in which detention is allowed without probable cause to arrest for a crime. It permitted officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.” 452 U.S., at 705, 101 S.Ct. 2587. The rule in Summers extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.
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The rule announced in Summers allows detention incident to the execution of a search warrant “because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.” Muehler, supra, at 98, 125 S.Ct. 1465.
[Contrasting the Facts in Summers and the Facts in Bailey]
In Summers and later cases the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant. In Summers, the defendant was detained on a walk leading down from the front steps of the house.
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Here, however, petitioner left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. The issue is whether the reasoning in Summers can justify detentions beyond the immediate vicinity of the premises being searched. An exception to the Fourth Amendment rule prohibiting detention absent probable cause must not diverge from its purpose and rationale. It is necessary, then, to discuss the reasons for the rule explained in Summers to determine if its rationale extends to a detention like the one here.
[The Summers Law Enforcement Interests]
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: officer safety, facilitating the completion of the search, and preventing flight. 452 U.S., at 702–703, 101 S.Ct. 2587.
The first interest identified in Summers was “the interest in minimizing the risk of harm to the officers.” Id., at 702, 101 S.Ct. 2587. There the Court held that “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence,” and
“[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id., at 702–703, 101 S.Ct. 2587.
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The second law enforcement interest relied on in Summers was that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” 452 U.S., at 703, 101 S.Ct. 2587. This interest in efficiency derives from distinct, but related, concerns.
If occupants are permitted to wander around the premises, there is the potential for interference with the execution of the search warrant. They can hide or destroy evidence, seek to distract the officers, or simply get in the way. Those risks are not presented by an occupant who departs beforehand. So, in this case, after Bailey drove away from the Lake Drive apartment, he was not a threat to the proper execution of the search. Had he returned, officers would have been free to detain him at that point. A general interest in avoiding obstruction of a search, however, cannot justify detention beyond the vicinity of the premises to be searched.
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The third law enforcement interest addressed in Summers was the “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” 452 U.S., at 702, 101 S.Ct. 2587. The proper interpretation of this language, in the context of Summers and in the broader context of the reasonableness standard that must govern and inform the detention incident to a search, is that the police can prohibit an occupant from leaving the scene of the search.
[The Limitation on Summers]
In sum, 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. Any of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search. This would give officers too much discretion. 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.
[The Summers Rule Is a Limited Intrusion on Personal Liberty]
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.” 452 U.S., at 703, 101 S.Ct. 2587. 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.” Id., at 702, 101 S.Ct. 2587.
[For Bailey, the Intrusion Was Not a Limited Intrusion]
Where officers arrest an individual away from his home, however, there is an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest. As demonstrated here, detention beyond the immediate vicinity can involve an initial detention away from the scene and a second detention at the residence. In between, the individual will suffer the additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest. The detention here 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.
[The Requirement of a Spatial Constraint]
Summers recognized that a rule permitting the detention of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search. Because this exception grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed.
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. The police action permitted here—the search of a residence—has a spatial dimension, and so a spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur. 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. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.
[Bailey’s Detention Was Beyond “The Immediate Vicinity”]
Here, petitioner was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question; and so this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases 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.
[Limiting Summers to “The Immediate Vicinity”]
Confining an officer’s authority to detain under Summers to the immediate vicinity of a premises to be searched is a proper limit because it accords with the rationale of the rule. The rule adopted by the Court of Appeals here, allowing detentions of a departed occupant “as soon as reasonably practicable,” departs from the spatial limit that is necessary to confine the rule in light of the substantial intrusions on the liberty of those detained. Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. 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.
[Giving the Court of Appeals a Second Chance]
Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale. In this respect it must be noted that the District Court, as an alternative ruling, held that stopping petitioner was lawful under Terry. This opinion expresses no view on that issue. It will be open, on remand, for the Court of Appeals to address the matter and to determine whether, assuming the Terry stop was valid, it yielded information that justified the detention the officers then imposed. [Emphasis added.]
My Thoughts
- Justice Kennedy’s opinion is beautifully written. It’s worth your time to read it in its entirety and not rely on my synopsis.
- Without regard to what the Court of Appeals does on remand, the Summers Rule has now been modified and limited. Will this impact a significant number of Fourth Amendment cases? Probably not, but it will be an issue in some cases—and this can only benefit the defense.
