Leaving the Scene: Protections of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
United States Constitution Amendment 4

Over thirty years ago, in Michigan v. Summers ("Summers"), the Supreme Court of the United States decided that it was, in fact, reasonable for the police, when executing a search warrant for contraband, to detain occupants of the house...even if they happened to be leaving - and outside the actual home - when the officers arrived.   (And do check out footnote 20 differentiating between "contraband" and "evidence" where the Court says that there is an open question under Summers if the search warrant is for evidence but not necessarily contraband and then query in this Brave New World where guns in the home are "fundamental" to self-defense where a search warrant for firearms would fall...)

The rationale was that the officers feared for their safety (even though they really didn't) and there was a high likelihood, in a search for drugs, that there would be a mad scramble to destroy the evidence...by the guy who was outside the house and that the occupants could help with the search even though they have a privilege against self-incrimination.  Justice Stewart proved his mettle about knowing things when he sees them by writing a powerful dissent which Justices Brennan and Marshall joined.

His opinion resonates with clarity about the limited exceptions to warrants and probable cause; he explained that the Terry v. Ohio line of cases were designed to be limited in scope and dedicated to the immediate interest of investigating crime and the interview-at-the-border cases, i.e.  United States v. Brignoni-Ponce, were limited to the legitimate government interest of preventing aliens from entering the country.  But in Justice Stewart's mind, they were limited, well defined, and for lack of a better term, reasonable.

In Summers, he explained that the detention of a person for whom the police do not have probable cause to arrest during the duration of a home search has no legitimate basis:

Unlike the law enforcement objectives that justified the police conduct in Terry and the border stop cases, these objectives represented nothing more than the ordinary police interest in discovering evidence of crime and apprehending wrongdoers. And the Fourth and Fourteenth Amendments impose significant restraints upon these traditional police activities, even though the police and the courts may find those restraints unreasonably inconvenient.

Michigan v. Summers, 452 U.S. at 709 (Stewart, J., dissenting).

Correctly, he noted that if the police detain people without probable cause for the purpose of arresting them once they establish probable cause, this is really a trip down the rabbit hole.  Significantly, he pointed out - with fear - that the, "explicit holding of the Court is that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. at 711 (internal quotation marks omitted). 

Recently, the Court decided Bailey v. United States ("Bailey") which took the Summers idea far afield from its roots, about 3/4 of a mile away.  In Bailey, the police watched and followed the defendant leave the premises the authorities were about to search pursuant to a warrant.  They followed him in his car with another man.  Almost a mile away from the site of the search, they pulled the car over, handcuffed both men and told them it was in relation to the execution of a search warrant at the address on Mr. Bailey's driver's license...which the two men admitted to having just left, the location being Mr. Bailey's home...and then, upon learning of the search warrant, Mr. Bailey not only denied that he lived there but that if the police happened to find anything, it would not be his.

Justice Kennedy, writing for the majority, said that Summers identified three law enforcement interests: flight, destruction of evidence, and controlling the scene (note in the dissent that Justice Breyer finds four interests, one of which he concocted out of thin air).  Given those three purposes, a search warrant will only justify the detention if the individual is actually...there... and a mile away was really too far.  The concurring opinion will begin to erode even this reasoning in support of the original Summers decision, hewing closer to the constraints of the Fourth Amendment's purpose: to protect society from intrusive, authoritarian governments.

Provided one accepts the Summers rationale without challenge to its tail chasing on the Fourth Amendment, Justice Scalia wrote a convincing concurrence onto which Justices Kagen and Ginsburg signed.  He explained that Summers delineated a bright line rule applying to seizures of persons within the immediate vicinity of the premises: Mr. Bailey's case facts are outside that bright-line rule and therefore Summers does not apply - at all.  While commenting that it is as simple as that, Justice Scalia then opens a door.

He noted also that the Summers decision was hardly a paragon of clarity because it cited a menu of options to support its deviance from the constitutional requirement of probable cause to arrest.  Justice Scalia declares that the Court should not have been so expansive in its rationale for allowing seizures of individuals without probable cause and so he would substitute the panoply of options to just one: carrying out an unimpeded search (which, let's face it, SHOULD allow for flight even under Summers and calls that whole decision into question - if the party is not present, he is unlikely to interfere with the police work).

In fact, Justice Scalia, more than 30 years after Michigan v. Summers, seems to agree in principle with the dissent in that case - which is kind of nice because the dissent was right.  Crime investigation cannot support a detention without probable cause.  Indeed, practitioners should note this tiny but powerful paragraph in the concurring opinion of Bailey in order to rein in the far reaches of long, drawn out Terry stops and other detentions facilitated without probable cause.

Justice Breyer's incomprehensible dissent joined by Justices Thomas and Alito evidences the utter disdain he holds for drug crimes (recall that Justice Breyer is a lead author of the United States Sentencing Guidelines which punishes drug crimes in profound ways that have crippled the nation and destroyed lives).  He links the Summers case to Mr. Bailey's because in both cases a search warrant justified the detention which is a lot like drinking at noon because it is 5:00 somewhere.  And, in Mr. Bailey's case, the police "permitted the occupants" to leave their own home (although it is fair to say that Americans believe leaving one's home is an essential fundamental right) and then followed them for good reason (not probable cause to arrest, mind you, but good - yet oddly undefined - reason) before they arrested him without probable cause to believe he had committed a crime.  Well, when he puts it that way, of course it makes sense to arrest these men driving legally on a public street.

Justice Breyer goes on to say that the risk of flight, destruction of evidence, and an exaggeration worth mentioning that was nowhere stated in Summers, "harm caused by those inside the house shooting at police or passersby" (how this is a reason to detain the people not inside the house and therefore not shooting at the police or passersby is unanswered...and why shooting a gun at other people would not in and of itself establish probable cause to arrest is also a mystery) would establish sufficient basis to detain people leaving a multi-unit dwelling BEFORE the police arrive to execute a search warrant the targets presumably do not know was obtained.  In other words, when it comes to detaining people, the Fourth Amendment has essentially no application for Justice Breyer and his friends Justices Thomas and Alito...at least not for drug cases... 

Query if a banker were leaving the penthouse in advance of the police executing a warrant, whether these three Justices would jump back in line and, asserting footnote 20 from Summers, declare that the warrant was for "evidence only" and not contraband therefore Summers had no application.  But that is a fantasy because the government has explained that punishing bankers is just too hard so they are not going to do it.  Because, if it is hard work, federal prosecutors want nothing to do with it.  Drug cases - blessedly - are easy which is why there are so many of them even though the effects of white collar crime are far greater on society and just one prosecution would have a great impact.

Bringing this home, Massachusetts addressed the Summers issue in Commonwealth v. Catanzaro where the Supreme Judicial Court ruled that police officers with a search warrant specifically indicating the authority to search "any person present" who detained the defendant and his girlfriend outside her home acted reasonably under both the United States and Massachusetts Constitutions.  However, Bailey - and specifically Justice Scalia's concurrence - calls the SJC's ruling in Commonwealth v. Charros into question.  In Charros, similar to Bailey, the SJC found that the Summers rule did not apply to detaining husband and wife co-defendants close to a mile from the site of the execution of the search warrant.  They summarily tossed the conviction of the wife on that reasoning.  

But, the husband's  detention and arrest were upheld because the information establishing probable cause to search the apartment provided in the affidavit for the search warrant concurrently satisfied the probable cause to arrest him for narcotics violations.  Query whether, if this were true, that the police may be required in such circumstances to obtain an arrest warrant as well - or if not, then perhaps a jury instruction along the lines of Commonwealth v. DiGiambattista that the SJC has voiced a preference for prophylactic and cautionary police procedures.  Either way, applications for warrants and affidavits in support must now be reviewed with extra caution to ensure that probable cause has been met for purpose of arrest prior to the initiation of a search.

The Court's decision in Bailey was the right one but it did not go far enough.  Justice Scalia's interesting concurrent provides much food for thought to discerning practitioners since it declares that the only reason to justify detention of occupants would be to facilitate the search - which is just as easily accomplished without their presence, challenging the framework, reasoning and result of Summers.

The definition of a bailey is a fortified wall; for this reason London's criminal court has affectionately been called Old Bailey for the nearby castle-like wall.  The Fourth Amendment must provide that bulwark: providing freedom from unreasonable searches and seizures of our persons, houses, papers and effects.