Has the Supreme Judicial Court Disavowed Automatic Standing for Possessory Offenses?

Massachusetts courts decided long ago that where a possessory offense is charged, a defendant has automatic standing to challenge evidence. In a recent case, the Supreme Judicial Court seemed to pull back from that determination.  In Commonwealth v. Tatum, the SJC discussed an interesting circumstance in which the police had a several active arrest warrants for an individual they believed to be in a third party residence's home.  Posing as a Verizon repairman, one officer peeked in through the windows of this home, discovered the defendant (and indeed had a conversation with him) and through this corroboration of a tip that the defendant would be found there, the police obtained a search warrant of the third party residence in order to execute the arrest warrants.  There was no evidence presented as to why the officer did not radio another officer and just arrest the person on the outstanding warrants at that time.  

During the execution of the search warrant to facilitate the arrest warrant, the defendant was indeed discovered and arrested; in that process the police saw "in plain view" a significant amount of drug paraphernalia and drugs.  Armed with that information, they obtained a second search warrant for the home in which they obtained significant contraband with which they charged the defendant.  He challenged the search based upon the first search warrant in which the police obtained evidence while unlawfully present within the curtilage of the home.

The SJC reviewed Payton v. New York (where the police may not enter an individual's home without a warrant even if they have probable cause to arrest; case also contains dicta that an arrest warrant would serve to allow for a search to execute the arrest warrant inside an individual's home) and Steagald v. United States (arrest warrant for individual not sufficient to satisfy Fourth Amendment for police to enter third party residence).  Given these parameters, the SJC ruled that the subject of a valid arrest warrant in a third party home has only the right to require that the police have a reasonable basis to believe he will be present when they enter the home of a third party to execute the arrest warrant...even if the evidence to suggest that the arrestee will be present was obtained unlawfully.  That is, the arrestee - who claims no residence in the third party home and has the status of an invitee or guest - cannot challenge the search warrant required to execute the arrest warrant when the search warrant plainly included evidence obtained via an illegal trespass.  This is the opposite of the automatic standing principle.  Although the Massachusetts Constitution has routinely provided broader protections for individual rights than has the federal Constitution, the SJC appears to be adopting a notion it previously rejected.  But because it fails to mention automatic standing at all, the ramifications of Tatum other than to the defendant himself are unclear.

Courts developed the "automatic standing" rule for precisely the conundrum in Tatum: when charged with a possessory crime, one need not assert specific protections of the Fourth Amendment in order to challenge the evidence because to do so would be to all but admit to the crime.  In Jones v. United States, the Court realized that a charge of possession of contraband put the defendant in a terrible situation - if he claimed an interest in the contraband then he was admitting the crime of possession.  Therefore, the Court ruled, that those charged with possessory offenses had automatic standing to challenge the search and seizure of that evidence.  Twenty years later, as the nation battled the "war on drugs" on every front, the Court rethought that grand idea and overturned Jones in United States v. Salvucci ruling that defendants cannot avail themselves of the exclusionary rule unless their own Fourth Amendment rights were violated.  And, in so determining, the Court linked the notion of standing and a reasonable expectation of privacy as the "reasonable expectation of privacy" was considered the threshold over which one must step in order to be protected by the Fourth Amendment.

Massachusetts Courts rejected the ruling of United States v. Salvucci, 448 U.S. 83 (1980) (a case reaching the Court from Massachusetts) and created a state law rule of automatic standing for all possessory offenses in Commonwealth v. Amendola.  Indeed, this point was mentioned by the dissenting Justices in Tatum even as the majority opinion ignored the concept of automatic standing throughout the opinion.  Further, the recent Court cases of United States v. Jones (GPS attached to vehicle without a warrant violated Fourth Amendment) and Florida v. Jardines (police need warrant to search curtilage of house, at least in regard to use of drug sniffing dogs) emphasize that the more traditional idea of trespass is fundamental to Fourth Amendment protections and that the reasonable expectation of privacy argument is in addition to, not in lieu of, trespass.

Because Massachusetts has allowed for automatic standing, the basis for the challenge is the charge of possession of the contraband and therefore any challenge should question whether the search and seizure was reasonable or whether the evidence should be suppressed.  But the SJC seemed to turn tables on the idea of automatic standing where the challenge to the evidence had to do with another's home.  Certainly the police did not violate the defendant's Fourth Amendment right to be free from government intrusion into his home, papers, possessions or person when the police violated another's right to be free from such intrusion.  

But, that is not the proper question to ask.  The question is whether the search and seizure was reasonable.  In Massachusetts people enjoy protections as per Art. 14  when they are overnight guests (Commonwealth v. Lopez, 458 Mass. 383 (2010)) or temporary tenants (Oystead v. Shed, 13 Mass. 520 (1816)) or residents of shelters (Commonwealth v. Porter P., 456 Mass. 254 (2010)).  The Supreme Court has ruled, similarly, that an overnight guest has a reasonable expectation of privacy (Minnesota v. Olson, 495 U.S. 91 (1990); other federal courts have recognized a reasonable expectation of privacy in less protected areas such as benches commonly used by homeless residents (Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012)).  Even under the tougher Fourth Amendment principles, whether the right is one of a reasonable expectation of privacy or the idea of trespass, the issue for the exclusionary rule under Salvucci is whether the individual enjoys the protections of the Fourth Amendment, not whose home is involved in the search.  It appears that tatum could validly assert both Fourth Amendment and Art. 14 protections under decisional law.  Therefore, even if rejecting the long standing rule for automatic standing, the SJC still should have analyzed whether the search and seizure of contraband in Tatum was reasonable.

Unpacking that a bit, the reason Tatum DID enjoy the protections of Art. 14 was because he was charged with possessory offenses and therefore had automatic standing under Massachusetts decisional law.  The SJC staying silent on that matter does not change the law in regard to automatic standing, however it has thrown the idea into a bit of a tailspin.  Even if decided under solely federal concepts, given the requirement for a search warrant to execute the arrest warrant as per Steagald, mustn't this search warrant be a valid search warrant premised upon legally obtained evidence to establish probable cause?  In Tatum, there very well may have been proper probable cause established to believe the defendant would be present even without the violation onto the curtilage of the home, but this was never analyzed.  There was a blatant statement that the defendant did not enjoy constitutional protections when he denied that the residence was his home.  This was error by the SJC under its past decisions regarding Art. 14 - but because it upholds federal law, it is unreviewable in the federal courts.

At common law, two concepts in particular presented glaring offenses to liberty: the “general warrant” which provided a law-enforcement officer with broad discretion or authority to search and seize unspecified places, people or goods and “writs of assistance” where customs officers had continual authority to search for stolen goods anywhere; indeed the writs only expired upon the death of the sovereign and they were transferable from officer to officer.  Among the treasures of artwork gracing the halls of the Massachusetts State House is a mural depicting James Otis arguing against the Writs of Assistance. For review, James Otis was a prosecutor for the Crown.  When the authorities began executing general warrants and writs of assistance, he quit his job and argued, gratis, on behalf of the Colonists.  He lost, but that case forever changed the trajectory of police intrusion into private spaces. To grasp how central the notion of individual liberties was to the Massachusetts colonists, one need only begin to read the constitution; unlike the amendments added to the United States Constitution, the rights of the people precede the organization of the government under the Massachusetts Constitution.  The Declaration of Rights was not an afterthought.  

Yet it barely gets a sideways glance from the SJC in Tatum.  In practice, what difference is there between a specific arrest warrant with authority to execute it anywhere, including inside a private home, and a general warrant?  The odious notion of the general warrant was this idea that the police could enter anywhere - a home, a neighbor's home, a ship, a church - in order to seize an individual.  The writs of assistance were repulsive because they allowed the police to search for contraband anywhere they believed contraband could be discovered.  At common law, there was no exclusionary rule; the remedy for such an unwarranted search and/or seizure was to sue the officers in court for trespass.  Query whether the defendant in Tatum could so proceed; he was subject to a valid, specific arrest warrant (several, indeed).  However, he was inside a residence, an area considered protected certainly as to the residents of the home but also as to guests and invitees - this was the whole point of the uproar against the general warrant. Courts developed the exclusionary rule to deter these distasteful practices in the first place and to streamline the process; where the police overstepped, they could not use the evidence at trial.  

In Katz v. United States, the Court stated that the Constitution protects people not places.  It protects them from unreasonable searches and seizures particularly within places in which they expect to be safe from government intrusion.   A residence - whether one's own or another's in which one is an invitee or guest - is one of those places.  Under past decisional law, Tatum had a reasonable expectation of privacy and was thus protected by both the Fourth Amendment and Art. 14 under the Katz principle.  If he did not have such a right, the search warrant would not be required under Steagald.

What he did not have was the authority to exercise the ownership interest in the home in regard to trespass.  At common law, the owner could sue the police for unlawful entry as per the phony Verizon worker scheme because the police were, at that time, not lawful invitees or licensees or guests; they were intruders not lawfully present.  Anything the police witnessed in a place they had no right to be should not be used against the residents of the home under the trespass theory - the evidence obtained as per the trespass should be excluded from trial as against the home owner or leaseholder.  But the guest or invitee has no authority to exercise this protection of the Fourth Amendment.  He has no right to declare a violation of trespass when he could not sue at common law for the same. 

But this historical journey does not address the issue in Tatum - charged with a possessory offense, he had automatic standing in Massachusetts- an idea not even mentioned by the majority opinion (it is unclear whether it was raised by the defendant at all).  Under automatic standing, everything is on the table to challenge the reasonableness of the search and seizure of evidence because the protection is presumed based upon the charged offense.  While the specifics of the case are unlikely to be repeated, it does open the door for arrest warrants to be executed more freely within private homes, it does open the door for lax measures to be taken in obtaining a search warrant for the purpose of executing an arrest warrant because the police know that their behavior will not be challenged.  

The SJC would do well to reread the cases that announced and extended the exclusionary rule.  In Weeks v.United States, 232 U.S. 383 (1914), federal officials gained access to a house first by information from a neighbor as to the location of a key and later by another boarder in the house, discovered papers in Mr. Week’s room and used these documents against him.  And, Mapp v. Ohio, 367 U.S. 643 (1961) where police officers unlawfully entered a private home without a warrant, having been denied access, handcuffed and ordered Ms. Mapp into a room, searched her home which she shared with others and arrested her for possession of obscene materials.  

Before Tatum was decided, defendants in Massachusetts had a right to automatic standing in challenging evidence related to possessory charges under accepted principles of due process of law.  After Tatum, this is less clear.  “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. at 659.  Words to live by.

The Devolution of Individual Liberties on a Case by Case Basis

The Fourth Amendment prohibits unreasonable searches of people, papers, possessions and places of residence. To establish reasonableness, the Amendment requires warrants to be both specific and based upon probable cause.   The question that arose in Missouri v. McNeely, SCT Docket No. 11-1425, was whether blood alcohol content in a driving under the influence case established a per se exclusion from the warrant requirement.  That answer is "no" but the result is a bit unsteady.  True understanding of the issue requires a bit of background.

The first case really addressing the invasion of a person's body by law enforcement is Rochin v. CA, 342 U.S. 165 (1952).  In that case, the Court concluded that the use of a stomach pump to remove potential evidence from an individual shocked the conscience violating principles of due process of law.  But, the history of that case must be understood in order to grasp the blase attitude of the Court in its decision in McNeely.  In People v. Rochin, 101 Cal.App.2d 140 (1950), the case overturned in Rochin v. CA, the California Court of Appeal found that the police broke into a man's house, asked him to answer a question he need not answer, watched him swallow two capsules, handcuffed him, transported him to a hospital and had his stomach pumped...for 2 morphine pills and a 60 month jail term...YET...because California did not accept the exclusionary rule, the Court of Appeals was bound by precedent to uphold the conviction.  The decision was scathing against the actions of the police, the ethics of the physician who conducted the stomach pump, and the lack of an exclusionary rule in California. 

Although the California Supreme Court refused to hear the case, two of those justices wrote powerful dissents stating, among other things, that police when left to their own devices cannot be trusted.  The two justices waxed poetic about the history, meaning and necessity of the specific warrant requirement and of the absolute need for the exclusionary rule in order to compel police to comply with the laws they, themselves, are charged with enforcing.  One dissenting judge even declared,

We are told by our national leaders that a state of emergency now exists throughout the world-that our liberties are in jeopardy-that to preserve those liberties we must unite with other free nations of the world in establishing the most potent military force of all time to resist totalitarian aggression. What are these liberties which are threatened? Is not the right of privacy, guaranteed by the above mentioned constitutional provisions, one of those liberties? There can be no question that the right of privacy is one of these fundamental rights, guaranteed by the Bill of Rights-the charter of our civil liberties. Could anyone imagine such right being any more ruthlessly violated under a totalitarian regime than it was in the case at bar? It makes little difference whether the minion of the law who perpetrates such outrages has the official title of commissar, gestapo, sheriff, policeman, constable, game warden, or whatnot, the violation of one's right of privacy is just as deplorable. Merely to say that what the officers did in this case, was wrong, is not enough-they will do it again and again if the courts continue to hold that the evidence they obtain by such unlawful means may be used in criminal prosecutions.

This was 1950.  Those judges were the finest example of what the Framers hoped for with an independent judiciary.  No doubt, this led to the acceptance of the certiorari petition.

In Rochin v. CA, which predates the incorporation doctrine, the Court reversed under the 14th Amendment Due Process Clause.  The best thoughts in that decision emanate from the two concurring opinions: of Justice Black - who called the amorphous nature of due process of law into question, concerned about its vagaries and demanding the incorporation of the Bill of Rights under the 14th Amendment; and Justice Douglas who remarked, "I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment." Rochin v. CA, 342 U.S. at 179 (Douglas, J. concurring).  To these Justices, this was a clear violation of the right not to be compelled to bear witness against oneself.

After Rochin, the Court decided the case of Breithaupt v. Abram, 352 U.S. 432 (1957).  Mr. Breithaupt was convicted of involuntary manslaughter after he caused an accident by driving erratically.  Injured and unconscious, at the hospital, a police officer directed a physician to draw blood which was then provided directly to the officer who had it tested at a police lab.  The results, indicating a high blood alcohol content, were admitted at trial. 

This did NOT shock the conscience of the Court as it was not brutal or offensive.  And, the majority went into a long description of the scourge of alcohol related deaths on the highway as reason for extreme measures.  It was 1957.  The highways had just been invented but airbags had not.  The dissents did not disagree with the problem of dangerous highways and inebriated drivers- merely the Court's role in the application of solution.  The whole point of due process is to remove certain rights from the reach of law enforcement...such as sticking a needle into a fellow human being in order to extract bodily fluids.  The dissenting justices correctly saw no difference between a stomach pump and a blood draw; no difference between the scourge of drugs and that of drunk driving.

Next came Schmerber v. CA, 384 U.S. 757 (1966) and perhaps the most remarkable aspect of the case is that by the time Mr. Schmerber was in the hospital arrested for driving under the influence, he already had a lawyer - who told him not to consent to a blood draw...so he did not consent and yet a doctor (allegedly treating him for his injuries) at the behest of a police officer drew his blood and gave it to law enforcement for analysis.  The Court found nothing wrong with this picture; indeed the majority opinion made up - with no supporting facts - that the police officer felt he had inadequate time to obtain a warrant and then with the stroke of a pen sanctioned police officers to order physicians to draw blood from suspects.

Again, the dissenters charged back: Justice Warren reiterating his dissent in Breithaupt and Justices Douglas and Black reiterated that compelling an individual to permit extraction of his bodily fluids is a violation of the 5th Amendment.  Indeed, they illustrate that the notion of "testimonial" and "communicative" evidence as a touchstone for acting as a witness against oneself has no foundation in precedent.  As to the 4th Amendment analysis, Justice Fortas even remarked in dissent that extracting blood by the state, particularly over protest, amounted to tortious violence.

Onward to Missouri v. McNeely where the Court remarkably combines all of the worst aspects of each of the prior cases to come to no real conclusion regarding the warrant requirement for extracting blood from one suspected of driving under the influence.  The Court ignores the significance of the Breithaupt case where Mr. Breithaupt was not only suspected of driving while inebriated, he killed people.  He was prosecuted for involuntary manslaughter, not driving under the influence.  The blood extracted from him while he was unconscious may or may not have influenced the guilty verdict.  But, once convicted, he did not even appeal.  His case came in through post-conviction habeas corpus, as an afterthought which may (or may not have) influenced the state and then the federal courts.

These massive procedural and factual differences were lost on the Court - they could not see the slippery slope and so slid down blindly.  Putting aside that appellate courts are not concerned with guilt or innocence, the other cases, Rochin and Schmerber - and McNeely - were prosecutions for the sins of drugs and drink and all came up on direct appeal.  They were policy-driven and not crime driven cases.  No one was hurt and nobody died.  Rochin was arrested in 1949 for morphine pills - the tactics were horrific and for what?  For a sixty day misdemeanor sentence.  In Schmerber, while the defendant was injured, no one else was involved.  He refused to blow into a newfangled Breathalyzer test (and his refusal entered in evidence without objection - the reason that 5th Amendment claim was rejected by the Court).  And, the purpose of the driving under the influence laws had been accomplished - he was off the road and would be for some time for the refusal of the breath test.  Still, he was more like Mr. Rochin and less like Mr. Breithaupt; but not to the Court, now bent on evidentiary science to prove guilt rather than constitutional principles to protect liberty.

By Mr. McNeely's case, all of the rules had changed: uniform rules on blood alcohol content came about due to federal funds for highway development and maintenance wherein Congress would only disperse funds to states that criminalized driving with blood alcohol content of .08 or higher.  That is, there is no magic number that indicates impairment - simply one Congress could agree upon before handing out money.  Breathalyzers became commonplace by the 1980's and are far less invasive: most states suspend licenses of anyone who refuses to submit, regardless of conviction.  Video is ubiquitous so that officers can film all of the roadside tests for view by a jury - or by a magistrate to issue a warrant for a blood draw.  And, communication has sped to the point of instantaneous connection wherein some states have developed a warrant procedure via email or Skype.

So, instead of walking through the history and rationale even of Breithaupt (where no other means had been developed to test blood alcohol content and the actual offense involved death), and revisitng the wisdom of Rochin, the Court veers into statistics and popularity of certain techniques - a course proper for a legislature, not a Court.  It then merely claims that there is no per se exigence related to driving under the influence and if a warrant can be obtained it should be...but if it's too much trouble, then it's not really a big deal.

At the same time, the Court acknowledges that most states have a warrant requirement and indicates that there are better, more consistent results with the warrant requirement and so obtaining and executing a warrant for a blood draw improves law enforcement overall.  Even though the results are more fair and less challenged when the police establish probable cause and present that to a detached magistrate for a ruling - and even though this enhances due process of law - the Court refuses to require it.

The McNeely decision splits up like this: Justice Sotomayor joined in full by Scalia, Ginsburg and Kagan makes this wishy-washy-cop-can-use-his-judgment-to-get-or-not-get-a-warrant determination and there is nothing inherently exigent about a "routine" driving under the influence case so the totality of the circumstances will dictate exigence.  In direct opposition is Justice Thomas who dissents (with a hypothetical about police watching a man carrying bundles of marijuana to a bonfire; it makes no sense but it is funny, though not intentionally so) by declaring that all driving under cases establish exigent circumstances to draw blood - no warrant, no problem.  Justice Kennedy joins the majority in part but really limits his decision to the statement that always dispensing with a warrant requirement is inconsistent with the Fourth Amendment.  

The most interesting - and bizarre - opinion is of the concurring in part and dissenting in part Justices Roberts, Alito and Breyer who desperately want to make a special exception for driving under the influence that would swallow the warrant requirement (which Justice Thomas just comes out and says) but they just...can't...get...there.  So, they like this idea better: driving under the influence presents presumptively exigent circumstances unless the police officer feels that he might be able to get a timely warrant.  They provide the examples of exigence and equate the need to extract blood from a lone driver pulled over for erratic driving to any of the following circumstances: a burning building (where police go in to SAVE people) or hot pursuit (where police are seeking to LIMIT damage of fleeing felons) or like having information about an injured person and entering a home to assist her.  That is NOT what blood alcohol content evidence is like at all.  It is not an exigent circumstance - it is simply very, very good evidence to convict someone for driving under the influence that dissipates over time.  But, investigating a crime and gathering evidence is not a reason to dispense with the Constitution.

In "routine" driving under cases, the refusal to blow into a breathalyzer or have a blood draw is enough, in most if not all states, to suspend a driver's license for several months.  Whether or not there is a conviction, that might be enough to keep the roads safer and wake the individual up to the potential danger involved in impaired driving.  And, isn't that the point of the policy?  No one is injured, no buildings are burning and no one is in further danger.  Taking blood under this rubric is much, much more like Rochin than it is like Breithaupt.   A plausible argument could be made that Mr. Breithaupt's treating physicians needed to draw his blood since he was unconscious and perhaps in need of more profound care requiring the medical personnel to know what was in his system to know what drugs not to give him.  Not perfect, but plausible.  All of the other cases involve police officers directing civilians to invade another person's body for evidence of a suspected crime where no one else was harmed - and the civilians DOING it with no court order - which is just mind-boggling, and terrifying, when one thinks about it.  There is not a chance that the Framers - who fought against the presence of an authoritative police state - intended this result.  It is just wrong.

The correct decision is the one lamented in the first Rochin case; the one where the frustrated judges adhered, kicking and screaming, to irrational precedent, practically begging the legislature to advance an exclusionary rule - and admonishing the tactics of the police and the ethics of the physician who pumped the defendant's stomach.  They waxed poetic about the role of government and the rights of the citizen.  Their eloquence persuaded, no doubt, the Court to take the certiorari and reverse the conviction out of sheer horror that the police could barge into someone's home and haul him out in handcuffs to have the contents of his stomach pumped into a bucket so they could prosecute him for essentially being a drug addict.  

The voices of the great Justices Douglas and Black harken to us to dispense with this idiocy that courts are here to enforce the will of the legislature or popular sentiment.  Courts are here to enforce the constraints of the Constitution whether people like it or they do not, whether it makes a police officer's job easier or it does not, whether it forces legislators back to law drafting or it does not.  Courts are here to protect individual liberties from the will of the masses.  That is exactly why Article III judges were given lifetime tenure.  

McNeely is a worthless non-decision that makes no change for the rights of individuals.  It does not enforce a warrant requirement to extract bodily fluids from a fellow human being.  It does not review the rationale behind any of the prior cases and reverse the misbegotten findings that blood is not testimonial in the same way that putting on a shirt is not testimonial.  It does not  venture into the meaning and purpose of being secure in one's person from an overeager government official.  

Recently, the Court ruled that it was trespass for drug sniffing dogs to poke around a yard thus requiring a warrant for that activity.  In McNeely, the very same Court ruled that it was NOT trespass for the police to order a civilian to perform a needless medical test by placing a sharp object into that person and - in the words of Justice Douglas - bloodletting.  Is there any more clear invasion of privacy than literally entering a body and removing its substances?  

This idea that the results of the blood test are somehow not testimonial, too, is laughable: asking someone to walk a certain way or put on a shirt is not the same as forcing him to sit still while a medical professional (whom he can now no longer trust to assist him in any medical treatment as the physician has become an agent of the government) draws his blood for the sole purpose of prosecuting him.   As Justice Black remarked, "[i]t is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers." Schmerber v. CA, 384 U.S. at 775 (Black, J. dissenting). 

The Court had the chance to do something profound, something grand, to restore so many rights taken away while promoting disastrous policies prohibiting alcohol and drugs; it could have required a warrant for every single medical invasion; it could have made a warrantless entry into a body presumptively unconstitutional as it does for entries into homes; it could have concluded that bodily fluids were encompassed in a privacy sphere requiring either the prohibition of use as testimonial evidence when taken by compulsion or a directive that due process requires significant protections to shield individuals from indignities and affronts to bodily integrity. Instead, it left everything in the hands of the police.  Not only does this result fail to provide any guidance, it is without question, the exact opposite of what Framers intended.

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.