Opinion analysis: A bright-line rule trumps interest-balancing
on Feb 25, 2013 at 8:25 am
This post was written by Andrew E. Taslitz, Professor of Law at American University, Washington College of Law. His teaching and research focus on criminal procedure, especially under the Fourth Amendment, criminal law, and evidence.
Last Tuesday, the Court issued its decision in Bailey v. United States, holding that the rule of Michigan v. Summers (1982), which permits the detention of persons found on the premises during the lawful execution of a search warrant, does not extend beyond the premises’ immediate vicinity. As I explained in my preview of the oral argument, the case arises because police officers saw Bailey leaving an apartment shortly before they planned to execute a search warrant there. They detained him approximately a mile away and discovered a key to the apartment – in which other officers had found a gun and drugs – in his pocket. When federal prosecutors brought charges against him, Bailey sought to have the key (as well as his statement to police officers) suppressed on the ground that his detention violated the Fourth Amendment. The district court denied his motion, holding that the detention was justified by the Court’s decision in Michigan v. Summers and, in the alternative, by Terry v. Ohio (1968); the jury then found Bailey guilty. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed. It read Summers to permit detaining the occupant of premises being searched pursuant to a valid warrant when the occupant leaves those premises so long as the detention is made “as soon as reasonably practicable.”
In Summers, the Court held that when police were preparing to execute a search warrant in a house, the detention of an occupant of that house whom police encountered going down the front steps of that house did not violate the Constitution. The Court justified its decision in Summers as implicating three interests: officer safety, facilitating orderly completion of the search, and preventing flight. But, said the Court on Tuesday in Bailey, none of those interests justified expanding the rule of Summers beyond the immediate vicinity of a premises. First, explained the Court in Bailey, there is little risk to officers executing a warrant from persons no longer on the premises. It is true that its occupants might return at any time. But “[o]fficers can and do mitigate that risk, however, by taking routine precautions, for instance by erecting barricades or posting someone on the perimeter or at the door.” If Bailey had returned to the premises during the search, the officers could have detained him under Summers. The mere possibility of his returning was not, however, sufficient to justify his detention. Indeed, that possibility exists even when occupants were not on the premises or seen leaving them during or before a search. To allow detention beyond the premises in the name of officer safety would in effect permit detention in a wide array of circumstances raising little danger to law enforcement. Nor was the court of appeals correct that limiting Summers requires police to face a dilemma: detain the individual immediately, thus risking alerting persons still inside the premises of the impending search or delay detention, creating the risk of being unable to arrest the individual if incriminating evidence is later discovered. If officers see danger in immediate detention, they need not do so, explained the Court. On the other hand, if they have reasonable grounds to believe there is such danger, they likely have other grounds to detain him away from the premises, such as reasonable suspicion under Terry. Nor does the risk that departing occupants might alert others to police surveillance establish any limits on Summers. Extending Summers in that fashion “would justify detaining anyone in the neighborhood who could alert occupants that the police are outside, all without individualized suspicion of criminal activity or connection to the residence to be searched.”
Second, the risk that occupants present on the premises will hide or destroy evidence, distract officers, or get in their way does not exist for occupants who departed before the search began. Summers did discuss the possibility of present occupants assisting in the search. But, explained the Court, that rationale must be confined to present, not absent, occupants because there would otherwise be “no limiting principle were it to be applied to persons beyond the premises of the search.” Moreover, Bailey had made clear that he would not assist the police, and police had already found incriminating evidence from their search, obviating the need for any assistance.
Third, the interest in preventing flight also had to be understood as important because of the risk that flight poses to the orderly completion of the search. Fleeing occupants aware of an ongoing search might cause property damage or compromise the search’s careful execution, including taking the very evidence with them that the search seeks to find. The flight rationale must be thus circumscribed or it becomes unbounded — permitting, for example, a search of an occupant ten miles away boarding an airplane. But that result would undermine the usual rules requiring probable cause for an arrest or reasonable suspicion for a brief investigatory detention under Terry.
Summers was also justified, explained the Bailey Court, by the limited intrusion on personal liberty involved there. Because the detention occurs in the occupant’s home, the restraint adds little stigma to that already inherent in the search itself and requires neither the “inconvenience nor the indignity associated with a compelled visit to the police station.”. That intrusion is far greater where the detention is made of an occupant distant from the premises. Such a detention more closely resembles a full-fledged arrest, and there are actually two detentions – one at the distant location, the other upon return to the premises. The compelled transfer between the two locations also gives the appearance of a full-blown arrest. Consequently, noted the Bailey Court, detentions beyond the premises’ immediate vicinity are qualitatively more intrusive. This high level of intrusion was present in Bailey’s case, where his “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.”
A spatial limitation on Summers thus helps to cabin its intrusiveness under circumstances where law enforcement need for detention is limited. A rule limiting Summers to the immediate vicinity of the search is workable, as the Court elaborated:
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.
The Second Circuit’s “as soon as reasonably practicable” test departed from the spatial limits that more effectively confine the Summers rule given the substantial liberty intrusion involved, said the Court. Lawful detention may still be permitted of a non-present occupant, however, emphasized the Court, if other grounds than Summers, such as Terry or an arrest based upon probable cause, justify it. Indeed, had the search team radioed the detectives who stopped Bailey’s car about the results of the search, that might have given them probable cause to arrest him. Accordingly, the Court reversed the decision of the court of appeals but remanded for further proceedings, primarily to address the district court’s alternative ground of decision – detention of Bailey under Terry, a ground not addressed by the Court in its opinion.
Justice Scalia, joined by Justices Ginsburg and Kagan, concurred in a separate opinion. Justice Scalia emphasized that, while the Court balanced state and individual interests to craft the Summers rule, the rule itself is categorical, permitting detention of residential “occupants” – that is, those within the premises’ immediate vicinity. Justice Scalia thus rejected what he saw as the effort by the Second Circuit and the dissenting Justices to balance interests in the individual case. A situation either fits within the Summers category or it does not.
The categorical nature of the rule simplifies it, making it more useful in offering officers guidance. Moreover, the ordinary Fourth Amendment principle is that seizures are reasonable only if based upon probable cause. Summers thus created a narrow exception, justified by necessity, to that rule. That necessity, concluded Justice Scalia, is properly limited to a single interest: “carrying out the search unimpeded by violence or other disruptions.” Preventing flight is not an interest distinguishable from the ordinary interest in apprehending suspects. Obtaining assistance from residents is likewise indistinguishable from the ordinary interest in investigating crime. Justice Scalia would thus have preferred that Summers itself limited its rationale to the single unusual violence or disruption justification. In any event, Justice Scalia explained, permitting ad hoc balancing would widen the narrow Summers exception so much as to undermine the usual probable-cause-for-arrest rule, allowing the Framers’ intended protections to dissipate too easily.
Justice Breyer, joined by Justices Thomas and Alito, dissented, praising the Second Circuit’s interest-balancing approach. The officers could have detained Bailey before he left the premises. Yet, said Justice Breyer, four interests justified detention a mile away. First, the existence of a search warrant meant that the detention imposed a fairly minor additional invasion of privacy. Second, because the warrant described the person who possessed the gun in terms that could have included Bailey and the other occupant, the risk of their flight was great. Third, the warrant authorized seizure of “[a] chrome .380 handgun, ammunition, [and] magazine clips.” That authorization recognized the grave danger to the officers. Moreover, the officers here doubtless delayed detaining Bailey precisely to avoid alerting any persons in the premises, a circumstance magnifying the danger to the police. Indeed, it turned out that the weapon found during this search was in plain view on the floor, which would have permitted easy access to it by any accomplices had they been present. That police can choose not to detain someone if there is danger in doing so is irrelevant. The risk that departing occupants have spotted the police is too great, and police can legitimately worry about this threat to their safety under such circumstances, even if the existence of the threat in a particular case may seem uncertain. Fourth, the occupants’ presence may in many cases help police to complete the search in an orderly fashion.
Moreover, explained Justice Breyer, the need for a bright-line rule must give way to these heavy concerns about safety, flight, and evidence destruction. Furthermore, the “presence on the immediate premises” test is itself anything but a bright-line rule. Justice Breyer also dismissed the majority’s hypothetical examples of abuse as red herrings given that they would also violate the Second Circuit’s “as soon as reasonably practicable” mandate because, for example, stopping someone ten miles from the premises is hardly a prompt detention, especially because the rule is limited solely to occupants in the process of leaving the premises. This same leaving-occupants limitation renders null any supposed danger that neighbors could be detained because of an imagined fear that they would pose a threat to the officers. Moreover, Summers justified its rule in part because there was already a judicial finding of individualized, articulable suspicion of wrongdoing at a particular location. “In turn,” however, “the connection between individualized suspicion of that place and individualized suspicion of ‘an individual in the process of leaving the premises’ is sufficiently tight to justify detention.” “That connection dissipates when the individual is not actually leaving the premises….” Justice Breyer concluded that, “[i]n sum, I believe that the majority has substituted a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amendment concerns such as privacy, safety, evidence destruction, and flight.”