On February 19, 2013, the Supreme Court of the United States decided Bailey v. United States [i], which involved the issue of whether Michigan v. Summers [ii] can justify detentions beyond the immediate vicinity of the premises being searched.
As a review, Michigan v. Summers involved the detention of a defendant as he was walking down the front steps of his house to leave the premises when the police were about to execute a search warrant for narcotics. The police detained Summers, executed the search warrant, and found illegal drugs. Summers was arrested. The issue before the Supreme Court in Summers was whether police can seize the resident of a house that is the target of a search warrant. The Supreme Court held that it was reasonable to seize the resident(s) where the police are executing a search warrant.
In 2005, the Supreme Court further expanded or clarified their holding in Summers when they decided Muehler v. Mena. [iii] In Muehler, officers executed a search warrant at the residence of an armed and dangerous gang member. Upon entry into the premises, officers located the plaintiff and other people. They were detained at gunpoint, handcuffed and held at the residence for 2-3 hours during the search. The Supreme Court held that based upon the danger to the officers at this location (armed and dangerous gang member’s residence), the officers acted reasonably in their conduct of handcuffing and detain the occupants, even those that turned out later to not be suspects.
Turning to the case at hand, Bailey v. United States [iv], involved a different type of situation. The facts of Bailey, taken directly from the case are as follows:
At 8:45 p.m. on July 28, 2005, local police obtained a warrant to search a residence for a .380-caliber handgun. The residence was a basement apartment at 103 Lake Drive, in Wyandanch, New York. A confidential informant had told police 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 the search unit began preparations for executing the warrant, two officers, Detectives Richard Sneider and Richard Gorbecki, were conducting surveillance in an unmarked car outside the residence. About 9:56 p.m., Sneider and Gorbecki observed two men—later identified as petitioner Chunon Bailey and Bryant Middleton—leave the gated area above the basement apartment 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. The detectives informed the search team of their intent to follow and detain the departing occupants. The search team then executed the search warrant at the apartment.
Detectives Sneider and Gorbecki tailed Bailey’s car for about a mile—and for about five minutes—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. Bailey identified himself and said he was coming from his home at 103 Lake Drive. His driver’s license, however, showed his address as Bayshore, New York, the town where the confidential informant told the police the suspect, “Polo,” used to live. Bailey’s passenger, Middleton, said Bailey was giving him a ride home and confirmed they were coming from Bailey’s residence at 103 Lake Drive. The officers put both men in handcuffs. When Bailey asked why, Gorbecki stated that they were being detained incident to the execution of a search warrant at 103 Lake Drive. Bailey responded: “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.”
The detectives called for a patrol car to take Bailey and Middleton back to the Lake Drive apartment. Detective Sneider drove the unmarked car back, while Detective Gorbecki used Bailey’s set of keys to drive Bailey’s car back to the search scene. By the time the group returned to 103 Lake Drive, 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. Officers later discovered that one of Bailey’s keys opened the door of the basement apartment. [v]
Bailey was subsequently charged with a federal drug offense and two federal weapons offenses. He filed a motion to suppress the evidence obtained during his detention (the apartment key from his pocket and his statements) in district court arguing that his detention about one mile (it was later determined to be approximately 7/10 of a mile), was not reasonable under Michigan v. Summers. The district court denied the motion to suppress and found the detention was reasonable under Summers. Additionally, the district court held that the detention was reasonable under Terry v. Ohio[vi]; in other words, there was sufficient reasonable suspicion of criminal activity to justify Bailey’s detention.
Bailey appealed to the Second Circuit Court of Appeals. They affirmed the ruling of the district court denying the motion to suppress on the grounds that the detention was reasonable under Michigan v. Summers. However, they did not discuss whether or not the detention was reasonable under Terry v. Ohio.
The Supreme Court of the United States granted certiorari to address the issue presented in Bailey’s case because different federal circuits have reached differing conclusions on the issue in this case. Restated, the issue is as follows:
Does Michigan v. Summers allow the detention of occupants of a residence which is the target of a search warrant beyond the immediate vicinity of the premises covered under the search warrant?
In its analysis of this issue, the Supreme Court began by examining their rationale in Summers. The Court noted that in Summers, they determined there were three reasons for allowing the detention of the resident. The first reason was safety. The Court stated:
[T]he 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, 69 L. Ed. 2d 340. [vii]
Thus, the Court reasoned that allowing officers to take “unquestioned command of the situation” provided safety to officers so that they can thoroughly search the location without fear that the occupants will disrupt them or otherwise hinder their work.
The second reason for allowing the detention of occupants under Summers is to aid in or facilitate the execution of the search warrant. This involves two aspects. On one hand, the occupants, if not restrained, could hide or destroy the evidence that the police seek. On the other hand, some occupants may actually assist officers in gaining access to certain things or containers in order to prevent the police from destroying or damaging the container to gain access.
The third reason for allowing the detention of occupants under Summers is to prevent flight. The Supreme Court reasoned that the rationale behind this was to protect the integrity of the search and loss of evidence that is related to the purpose of the search warrant. The court opined that if police had to keep close watch of occupants during the execution of a search warrant, they may rush the search or do a less thorough search than if they were allowed to detain the occupants while they conduct a thorough search. The court further stated
The concern over flight is not because of the danger of flight itself but because of the damage that potential flight can cause to the integrity of the search. [viii]
After a review of the rationale of Summers, the Supreme Court stated that these three reasons were not sufficient to justify a detention of a resident who is no longer in the immediate vicinity of the residence. Specifically, the Supreme Court held:
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. [ix] [emphasis added]
To support the holding above, the Supreme Court noted that when a person is detained at the scene of a search warrant, this detention “represents only an incremental intrusion” on a person’s freedom when an intrusion has already been authorized by a search warrant. [x] However, the Court continued, that when a person is detained away from their residence, this represents an additional intrusion beyond what has been authorized by the search warrant. Further, it will likely result in an involuntarily transport back to the residence and a continued detention. The court said that this gives all the appearance of an arrest where the search warrant only authorized a search of a premises.
Further in support of their holding, the Supreme Court then stated:
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. [xi]
The Supreme Court did not specifically provide an exact definition of “immediate vicinity” in this case. They did state that factors to consider when deciding if a person is in the immediate vicinity are (1) the lawful limits of the premises, (2) whether the occupant was within a line of sight of the premises being searched, (3) the ease of reentry from the occupant’s location, and (4) other relevant factors. Thus, it will be up to lower courts to define “immediate vicinity,” and this will be on a case-by-case basis, based on the totality of the circumstances of the individual case. However, we do know that that the Supreme Court, in Bailey, has held that approximately one mile (7/10 of a mile) is not the immediate vicinity which will authorize a detention under Summers.
The Supreme Court therefore reversed the Second Circuit and remanded the case back to them to determine if Bailey’s detention was supported by reasonable suspicion of criminal activity and therefore reasonable under Terry v. Ohio.
The Bottom Line – Important Points from Bailey v. United States
1. Rule: The categorical authority of the police to detain occupants of a residence during the execution of a search warrant does not extend to persons who are not in the immediate vicinity of the premises being searched.
2. Factors to consider regarding whether a person is in the immediate vicinity of scene of a search warrant:
(1) The lawful limits of the premises (in other words, the property boundaries);
(2) Whether the occupant was within a line of sight of the premises being searched,
(3) The ease of reentry from the occupant’s location, and
(4) Other relevant factors.
3. If the officer needs to detain a resident who is not in the immediate vicinity of the scene of a search warrant, the officer needs reasonable suspicion of criminal activity (just like with any other stop) or reasonable suspicion of a traffic violation. The officer should therefore articulate such facts that would provide the required reasonable suspicion. NOTE: The officer must keep the detention reasonable in scope to the facts that justify the stop.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-770, 2013 U.S. LEXIS 1075
[ii] 452 U.S. 692 (1981)
[iii] 544 U.S. 93 (2005)
[iv] Bailey, 2013 U.S. LEXIS 1075
[v] Id. at 8-10
[vi] 392 U.S. 1 (1969)
[vii] Bailey at 15
[viii] Id. at 22
[ix] Id. at 23-24
[x] Id. at 24
[xi] Id. at 25-26