U.S. Supreme Court justices question if cops’ detention power goes the distance

Listen to this article

By Kimberly Atkins
Dolan Media Newswires

The justices of the U.S. Supreme Court seemed disinclined to back a lower court ruling allowing police to detain someone incident to the execution of a search warrant after the person had driven a mile away from the location being searched.

The case, Bailey v. U.S., involved police officers who arrived at a house to execute a search warrant.

Before entering the premises, police observed two individuals leaving the house, getting into a car and driving away. Instead of stopping them immediately, the officers followed the men for about a mile before pulling them over.

The police briefly questioned the men before placing them in handcuffs and telling them that they were not being arrested, but rather they were being detained incident to the execution of the search warrant at the house they had left. The officers drove the men back to the house, where police found firearms and drugs.
The men were charged with drug trafficking and weapons offenses.

The men moved to suppress evidence and statements obtained at the scene, arguing that under Michigan v. Summers, 452 U. S. 692 (1981), detention incident to the execution of a warrant can only happen on the premises being searched, but the district court rejected the motion. They were convicted, and the 2nd Circuit affirmed the convictions, holding that there was “no basis for drawing a bright-line test under Summers at the residence’s curb,” saying that police can detain individuals as soon as it is practical to do so.

The Supreme Court granted certiorari.

No police detention ‘entitlement’

At oral arguments on Thursday, Kannon K. Shanmugam, a partner in the Washington office of Williams & Connolly, argued on one of the defendants’ behalf that Summers was “categorical” in only authorizing the detention by police of “individuals they encounter at the scene while they are in the course of executing the warrant.”

But Justice Sonia Sotomayor asked whether Bailey’s proffered “immediate vicinity” test was practical.

“Your adversaries point out that the 2nd Circuit test actually focuses on the police officer’s conduct,” Sotomayor said. “Why isn’t the focus on police conduct the right focus?”

“Summers does not create a police entitlement” to detain individuals, Shanmugam said. “It is instead a rule of necessity and should be confined to situations in which a detention serves search-related purposes.”

Justice Samuel Alito Jr. pointed out that one reason for allowing police to detain people incident to a warrant is to protect officers’ safety.

“Officer safety is undermined by your rule because it requires them to stop the person on the premises and, therefore, potentially tip off those inside about their presence,” Alito said.

“But they also have the choice not to engage in a detention at all,” Shanmugam said.

Justice Stephen Breyer picked up on Alito’s point.

“The police have to know what they’re supposed to do when they go in to search a house,” Breyer said. “I see a recipe for a mess.”

Breyer pressed Shanmugam to establish a rule.

“They can’t stop them from leaving if, blank,” Breyer said, looking for Shanmugam to fill in the “blank.”

Shanmugam said police can stop someone while they are still in the vicinity of the place being searched. Once they leave, he said, it’s too late.

“They could always proceed to execute the warrant when they see an individual leaving; and, if they are in the course of executing the warrant, a detention is permissible,” Shanmugam said.

The ‘who’ and the ‘where’

Jeffrey Wall, assistant to the solicitor general, argued that the defendant seeks to draw the line in the wrong place.

“Summers is about current and recent occupants, people whom police, when they are executing the warrant, find at the home or see leaving the home in the process of executing a warrant,” Wall said.

Several justices expressed concern that such a rule was too broad.

“You have to come up with something better than that,” Justice Elena Kagan said. “Your rule would seem to encompass a whole set of people who are leaving their houses for ordinary reasons: ‘I’m going to work in the morning.’”

Wall said that the 2nd Circuit’s “as soon as practical” rule guards against that, so a proximity rule is unnecessary.

“There is nothing magical about the gate [of a house] for Fourth Amendment purposes,” he said. “When he steps through the gate, he’s just as much of a flight risk, a danger to officers and just as able to assist in the orderly completion of a search.”

“There is something magical about the gate, or at least about the immediate vicinity of the house,” Justice Antonin Scalia said. “What we’re trying to apply here is an absolute rule to make it unnecessary for the officers to guess. … You consider [the 2nd Circuit rule] an absolute test?”

“It is an absolute rule and it gives you a who, who is detainable,” Wall said.

“It doesn’t give you a where,” Scalia said. “You need more than a who. You need a who and a where.”

A decision is expected later this term.