Criminal Law Practitioner Blog: Does Officer Safety Justify the Detention of a Person Who Has Left the Premises?

On November 1^st, 2012, the Supreme Court heard arguments in the case Bailey v. United States, a case challenging whether Michigan v. Summers allows police to detain someone they observed leaving a premise that is about to be searched, who have driven seven-tenths of a mile away.[1] This challenge comes from the United States Court of Appeals for the Second Circuit, which held that pursuant to Michigan v. Summers, Bailey’s detention during the search of his residence was justified.[2] In Michigan v. Summers, the Supreme Court held that it was lawful to require a person leaving the front door of their home to re-enter and be detained in their home until evidence establishing probable cause to arrest them was found.[3] The question in Bailey is whether Summers is limited to suspicionless detentions of a person in the immediate vicinity of the premises, or whether Summers can be used to detain a person who has left the immediate vicinity. Summers is an exception to the usual requirement that police have to have a reasonable suspicion that a person was involved in criminal activity, or that they are armed and dangerous, in order to detain them.

In Bailey v. Unites States, the police obtained a search warrant for a basement apartment based on information from a confidential informant. The search warrant contained a general description of the suspect, “a heavy-set black male with short hair”, and identified a chrome .380 handgun as the target of the search. Officers at the premises observed two men matching the description in the search warrant leave the premises and drive away. Officers followed the car and pulled them over seven-tenths of a mile away from the premises. Officers conducted a pat down of both individuals, put them in handcuffs, and informed them that they were being detained incident to the execution of a search warrant at the premises they had just left. The two men, Bailey and Middleton, were transported back to the premises and informed upon arrival that during the search the officers found a gun and drugs in plain view in the apartment. Bailey and Middleton were then arrested and Bailey’s house and car keys were seized. Later, one of the officers discovered that one of the keys on Bailey’s key ring opened the door of the basement apartment.

Bailey moved to suppress the physical evidence and his statements on the theory that he was unlawfully detained and searched in violation of the Fourth Amendment. The District Court for the Eastern District of New York reasoned that the detective’s authority to detain Bailey under Summers was not confined to the physical premises of the apartment so long as detention occurred as soon as practicable after departure. Bailey appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals upheld the District Court’s conviction reasoning that detention of someone observed leaving the premises is not a violation of the Fourth Amendment if they were detained as soon as practicable. The court also stated that the officer’s decision to wait to detain Bailey “out of concern for their own safety and to prevent alerting other possible occupants was, in the circumstances presented, reasonable and prudent.”

The Supreme Court decided to take this case because there was a circuit split on this issue. Of the five courts to consider this issue, three have extended Summers on facts similar to this case, and two have declined to extend Summers. The decision of the Second Circuit is in line with decisions from the Fifth, Sixth, and Seventh Circuits. The Sixth Circuit held that detention was reasonable concluding that “Summers does not impose upon police a duty based on geographic proximity; rather, the focus is upon police performance, that is, whether police detained defendant as soon as practicable after departing from his residence.”[4] The Fifth Circuit reasoned similarly in the case before them additionally stating that the nexus between the defendant and the residence gave officers an “easily identifiable and certain basis for determining that suspicion of criminal activity justifie[d] a detention of that occupant.” The Seventh Circuit also reasoned that as long as the vehicle was pulled over as soon as practicable, the conduct of the officers was reasonable.

Alternatively, the Eighth and the Tenth Circuits refused to extend Summers to this situation. The Eighth Circuit determined that because the defendant had left the area and was unaware of the warrant, the officers did not have any interest in preventing his flight, and therefore Summers was inapplicable. The Tenth Circuit also reasoned that since the defendant did not know about the warrant he had no reason to flee, he did not pose a risk of harm to the officers, and his detention played no part in facilitating the orderly completion of the search.

Bailey v. United States has come before the Supreme Court in order to resolve this split of authority. During oral arguments counsel for Bailey argued that Summers is limited to detentions of persons in the immediate vicinity of the premises to be searched and beyond that the usual rules for detaining someone would apply, not the Summers exception. Bailey’s counsel also argued that there is no evidence supporting the justification for the Summers rule, which is officer safety, in that they have never shown that there is a serious risk to officers of someone leaving the premises who did not see the police coming back and endangering the officers or warning possible compatriots. Additionally, Bailey’s counsel argued that since the rule in Summers is an exception to the usual rule that it must be interpreted narrowly. Because of this, Bailey’s counsel stated that the burden for the need to expand the narrow Summers rule should be on the government and that they had not demonstrated any instances of a person leaving the scene and coming back and disrupting the search by harming officers or warning their compatriots.

Alternatively, the government argued that the dicta in Summers had rejected any geographic limitation by stating that the fact that Summers was leaving his house did not have any constitutional significance.[5] Furthermore, the government argued that when an individual is seen leaving the premises where they have a search warrant, they have suspicion to detain the occupant because of the inference that someone inside that home is committing a crime. Both of these arguments would negate the geographical limitations that Bailey’s counsel attempts to put on the rule. Additionally, the government argued that the danger to officers of people leaving the premises was high since those individuals often return. Also, the government pointed out that there was currently no evidence of police abuse of Summers nor any behavior suggesting officers see Summers as an entitlement to search freely.

During oral argument Justice Scalia suggested that the government’s proposed rule would allow the existence of a search warrant to justify detaining anyone connected to the premises. Justice Scalia and Justice Sotomayor also expressed skepticism that someone leaving the premises heightened the danger of those individuals returning and interfering with the search. Alternatively, Justice Alito questioned Bailey’s counsel on the workability of the immediate vicinity test stating that it undermined officer safety because it required officers to stop the person on the premises, thereby alerting anyone inside that there would be a search. Additionally, the Chief Justice expressed concern that the immediate vicinity test would be costly since it would require additional officers to be present at the scene of a search in order to serve as lookouts for a person returning to the premises. Though it is difficult to tell just from oral argument which way the Justices will land on this decision, from the questioning it seemed as if some Justices had already made up their mind that this expansion of Summers is a violation of the Fourth Amendment. Justice Scalia especially seemed to have already determined that it is a violation stating that anything beyond the immediate vicinity test may be too expansive, especially if it were to extend to the boundaries of a property, which could possibly be very large.

Personally I have to agree with the argument made by Bailey’s counsel. Since Summers is an exception to the Fourth Amendment rule it should be narrowly interpreted and the government should have to prove the need to expand it. Whether officers have seen a person leaving the premises or not, there is always a risk that someone will come while the search is taking place. Though it is true that there is a danger to police officers of people coming while a search is taking place the government has not shown that there is any additional danger if that person has been seen previously leaving the premises. The argument could be made there might even be less danger from a person who has just left since presumably they will be gone for some period of time. Though I do not believe that there should be a bright line rule as to where officers are allowed to arrest someone I believe the court here has gone too far and has extended this exception beyond what the court in Summers had intended. It is different to say that there was no constitutional significance to the fact that Summers had walked out his door than it is to say that it is justifiable under this exception to follow a car a mile away from the premises, detain the individuals, bring them back to the premises, and then arrest them.