Volume 8, Number 1 | June 2013

Detention of Persons Not Present at the Scene of a Search

by Jack E. Call
Professor of Criminal Justice
Radford University

            On February 19, 2013, the Supreme Court decided an important case dealing with the authority of the police to detain persons for whom they lack probable cause to arrest while the police search a place recently occupied by the persons detained.  In the case of Bailey v. United States, the Court ruled 6-3 that such a procedure is unconstitutional under the Fourth Amendment.

            In 1981, the U.S. Supreme Court ruled in Michigan v. Summers1 that the police could detain the occupants of premises that were being searched pursuant to a duly obtained search warrant.  The police did not need probable cause to arrest the occupants or reasonable suspicion to think all of the persons detained had committed, were committing, or were about to commit a crime.  The Court indicated that three important law enforcement interests justify this detention without suspicion:  1) to protect the officers conducting the search; 2) to facilitate completion of the search; and 3) to prevent the flight of persons on the premises who might be connected to criminal activity occurring there.

            In Bailey, the police in Wyandach, New York, obtained a warrant to search an apartment at 103 Lake Drive for a handgun.  A confidential informant had told the police that he had recently observed a gun at this residence when he had purchased drugs from a “heavy set black male with short hair.”  Two detectives established surveillance of the apartment while preparations were made near the apartment to execute the search warrant.  Before the search could be commenced, the detectives observed two men leave the apartment, both of whom met the general description of the person from whom the CI had purchased drugs.  The men got in a car and drove away from the apartment.

            The detectives followed the two men while the search team began its search of the apartment.  About five minutes later (and about a mile from the apartment), the detectives stopped the car, ordered the two men out of the car, and patted them down.  Bailey, one of the occupants of the car, initially told the officers that he had just left his residence at 103 Lake Drive but then denied living at the apartment when he was informed that it was being searched.  The detectives took a set of keys from Bailey.  The police took the two men back to the apartment, where the search had turned up the handgun and drugs in plain view.  One of the keys on Bailey’s king ring operated the door to the apartment.  After being charged with drug possession and illegal possession of a gun by a felon under federal law, Bailey moved to suppress both the statement he made to the detectives and the apartment key as fruits of an illegal detention.  The court’s denial of the motion to suppress evidence formed the basis for Bailey’s appeal after being convicted of the charges against him.

            The District Court and U.S. Court of Appeals for the Second Circuit held that Bailey’s detention was lawful under the Supreme Court’s ruling in Summers.  The Court of Appeals viewed Summers as “authoriz[ing] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practical.”

            Justice Kennedy wrote the Court’s opinion.  He began by noting that Summers itself deviates from the usual rule that the police may not detain someone unless they have particularized suspicion (probable cause or reasonable suspicion) that the person detained “is involved in criminal activity or poses a specific danger to the officers.”  Kennedy also noted that in Summers and later cases applying Summers,2 the persons detained were still in or close by the premises searched at the time of the search.  Thus, any expansion of the authority to detain beyond these limitations can be justified only if necessary to effectuate one of the three purposes mentioned in Summers.

            The opinion therefore quite logically turns to an examination of those three purposes.  The first purpose identified in Summers was the need to protect officers conducting the search.  Of course, in Summers, the persons detained were present at the scene of the search and were obviously aware therefore that the police were searching the premises.  In this case, however, the persons detained by the two detectives were no longer on the premises and were unaware that a search of the premises was imminent.  The Court noted that Bailey and his companion could have been detained if they had rushed back to the premises while they were being searched for some reason, but “[t]here is no established principle … that allows the arrest of anyone away from the premises who is likely to return.”

            The Court of Appeals had noted an additional safety concern.  If the police may detain persons in circumstances like those in this case, the police will face the dilemma of either detaining the persons leaving the premises they are about to search (thereby alerting any other occupants of the premises that a search is likely imminent) or allowing the departing persons to leave (and thereby run the risk that the police would not be able to find and arrest the persons if the search turns up evidence implicating them in criminal activity).  However, the police do not have to detain these persons and permitting them to go about their business removes any imminent threat to the safety of the officers.

            The second law enforcement interest articulated in Summers was the orderly completion of the search without interference from persons present at the scene.  But, of course, that concern had dissipated once Bailey and his companion had departed the scene of the search.

            The third legitimate law enforcement interest in Summers was the danger that persons at the scene might flee if incriminating evidence is found during the search.  If the police may not secure these persons, the concern that they might flee could prove distracting to the police who would be constantly looking over their shoulders to insure that the persons were not trying to flee or to find and destroy evidence.  The Court concluded that this interest concerns preserving the integrity of the search, not insuring against the flight of potentially dangerous persons.  But again, since the persons detained in this case were no longer at the scene, they posed no threat to the integrity of the search.

            Therefore, none of the purposes at stake in Summers were present in Bailey.  What’s more, the detentions in Summers were also justified, in part, by the somewhat limited intrusiveness of the detentions.  The detentions there did not expose the persons detained to the public indignity associated with the detentions here, which took place in public, not in the privacy of a home.  Thus, the Court concluded, the police may not detain persons incident to a search unless those persons are “in the immediate vicinity of a premises to be searched.”

            Of course, what constitutes “the immediate vicinity of a premises to be searched” may not always be obvious (as the dissent appropriately notes).  The majority also recognized this difficulty and responded with this somewhat less than helpful observation:  “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.”

            Does this mean that a person who was in the premises to be searched may not be detained if the person has moved outside the legal property boundaries or is no longer visible from the premises to be searched?  As is so often the case with decisions of the Supreme Court, these questions will require future cases to resolve them. 

            Another question may be raised about whether the actions taken by the police in detaining Bailey, frisking him, and transporting him back to the apartment could be justified as a proper stop and frisk.  In Terry v. Ohio,3 the Supreme Court held that the police may stop a person briefly – short of an arrest – for investigatory purposes if they have reasonable suspicion to think the person stopped has committed, is committing, or is about to commit a crime.  If the police also have reasonable suspicion to think the person they have lawfully stopped is armed and dangerous, they may frisk the person – limited to a pat-down of the outer clothing of the person stopped.

            The issue of whether Bailey was lawfully detained was not considered by the Supreme Court in this case because the issue had not been decided by the Court of Appeals.  Since the Court of Appeals had ruled that the police could seize Bailey under Michigan v. Summers, that court did not need to address the Terry issues.  However, the judge who presided over the trial in this case in federal District Court did rule on the Terry issues. 

            The District Court judge ruled that there was reasonable suspicion to stop Bailey.  This was based on the fact that “Bailey exited the search location and matched the general description provided by the confidential informant.”  What’s more, the stop revealed additional suspicious information – Bailey’s statement to the officers that 103 Lake Drive was his residence and a driver’s license for Bailey with an address in the town that the informant had indicated his drug source had once lived.  This conclusion by the district court is unremarkable; it seems likely that most courts would agree.

            The more difficult issue concerns whether the police were justified in moving Bailey from the place where they stopped him to the apartment at 103 Lake Drive.  It is at least debatable whether the police had probable cause to arrest Bailey at this point.  (They had probable cause to think drugs were at 103 Lake Drive, and they had connected Bailey to that apartment.  But it was still not confirmed that there were drugs at the apartment or that Bailey was the trafficker to whom the informant referred).  If the police did have probable cause, they could clearly move him.  If they did not, the question would be whether the movement of Bailey to the apartment exceeded the proper scope of a Terry stop.  The district court concluded that the police were justified in moving Bailey back to the apartment, citing safety and security concerns (although the court did not spell out the precise nature of those concerns). 

    The U.S. Court of Appeals will review these holdings of the district court.  There is a very good chance that, even though the government lost the Summers issue before the Supreme Court, it may still win this case on the Terry issues.

[1] 452 U.S. 692 (1981).

[2] Muehler v. Mena, 544 U.S. 93 (2005); Los Angeles County v. Rettele, 550 U.S. 609 (2007)(per curiam).

[3] 392 U.S. 1 (1968).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.