Officers were watching a house prior to the execution of a search warrant. The object of the warrant was a handgun. The officers had a description of the occupant of the house. As they watched, two men came out of the house, got into a car and drove away. Both men matched the description of the occupant. The officers did not want to stop the car near the house and potentially alert others to their presence, so they followed the two men and stopped them approximately a mile away. The driver, Bailey, gave his address as the target house, even though his driver license showed a different address. The other man confirmed that Bailey lived at the target house.
The officers handcuffed the two men, explained that they were not under arrest, but merely being detained during the search warrant execution. When told about the search warrant, Bailey denied living at the target address. Searching officers found the gun and drugs in plain view in the house. Bailey was arrested and his keys were seized incident to the arrest. One of the keys opened the door at the target house.
Bailey claimed that the detention was improper because it happened away from the scene of the search warrant execution. In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme Court authorized officers to detain the occupants on the premises of a search warrant target in order to maximize safety, facilitate orderly execution of the warrant and to prevent flight from the premises.
“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.”
Following the Summers decision, courts have ruled inconsistently on the geographic and temporal proximity of the search of occupants. Some courts interpret Summers to allow a search of persons entering the zone around the target location. Others have allowed searches of persons who drive away from the target location, as happened in this case. Both the Tenth and the Eighth Circuits have limited the authority given by Summers to searches of persons actually on the target premises at the time of the execution. These courts opine that a person is no longer a threat after leaving the target location and is unlikely to interfere with the warrant execution.
The Second Circuit joined the majority view held by the Fifth, Sixth, and Seventh Circuits and upheld the detention that occurred five minutes and one mile away from the target location.
“Summers imposes upon police a duty based on both geographic and temporal proximity — police must identify an individual in the process of leaving the premises subject to search and detain him as soon as practicable during the execution of the search.”
“There is no basis for drawing a bright line test under Summers at the residence's curb and finding that the authority to detain under Summers always dissipates once the occupant of the residence drives away.”
The court held that the officers acted reasonably in allowing Bailey to move out of the area where other occupants and/or neighbors could have been alerted to the warrant execution. The court noted that the officers were trying to make the execution process safer and were not attempting to exploit the detention to gain additional evidence against Bailey. Officers should discuss the application of Summers in their area with legal counsel in order to know which side local courts fall on in the split of authority. United States v. Bailey, — F.3d — , 2011 WL 2623442 (2nd Cir. 2011).
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