Argument preview: Court to clarify scope of Michigan v. Summers

Over thirty years ago, in Michigan v. Summers, the Court held that police officers who are executing a search warrant at a home may detain a resident of the home until the search is completed. On October 30, in Bailey v. United States, the Court will consider the scope of its decision in Summers – specifically, whether it extends to a stop and detention of a suspect who was unaware that the search was proceeding but is believed to have some connection to the location of the search, when he was stopped about a mile away from it, his person searched, and his detention extended until the search of the home was finished, at which time he was formally arrested.

Factual background

In 2005, police officers in Suffolk County (N.Y.) obtained a no-knock search warrant for a.380-caliber handgun in the basement of a house at 103 Lake Drive.  The warrant was based on a tip by a confidential informant – a repeat offender recently arrested for driving a stolen car – that he had seen such a gun the previous weekend while visiting an apartment there to buy drugs from “Polo,” a “heavy set black male with short hair.”

Several officers, along with the Emergency Services Unit – a kind of local SWAT team – gathered at 103 Lake Drive to conduct the search. Police officers watching the house from an unmarked car saw two men, later identified as Chunon L. Bailey and Bryant Middleton, coming from a gate at the top of the stairs to the basement – an area allowing access to both the basement and the upstairs of the house. Both men fit the informant’s description of “Polo.” The officers decided not to detain the men on the scene, fearing that doing so might alert anyone present in the apartment to their presence and thereby eliminate the element of surprise authorized by the no-knock warrant to protect officer safety and prevent destruction of evidence.

As the two men started driving away, two officers followed in their unmarked car, with their lights off. Five minutes after leaving the scene, and about a mile away, the officers stopped Bailey’s car, ordered the men out of it, and patted them down. They did not find any weapons, but they seized Bailey’s keys from his pants pocket and questioned him. Bailey said he was coming from his house at 103 Lake Drive, but he then produced a driver’s license with an address several miles away in the town of Bay Shore – which was consistent with the informant’s statement to police that “Polo” previously lived and sold drugs in Bay Shore.

The officers handcuffed the men. Officer Gorbecki told them that they were not being arrested but were being detained incident to the execution of a search warrant at 103 Lake Drive. Bailey responded, “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.” The handcuffed men were then driven back to 103 Lake Drive.  By that point, the Emergency Services Unit had entered the apartment, where they found a gun and drugs in plain view. The officers then formally arrested Bailey and Middleton, approximately ten to twelve minutes after having stopped Bailey’s car. The search of the apartment also uncovered two more guns, ammunition, and drug-related paraphernalia, but not the .380 handgun that had prompted the search. The officers also discovered that one of the keys taken from Bailey’s pants pocket opened the apartment’s door.

Procedural history

Bailey was eventually convicted of possessing at least five grams of cocaine with intent to distribute, possessing a firearm as a felon, and possessing a firearm in furtherance of a drug-related crime. His pre-trial motion to suppress the key found in his pants pockets and his statements to police had been denied by the district court, which construed Summers as extending to detentions made after an occupant has left the premises being searched so long as the detention was made “as soon as practicable” after his departure. In the district court’s view, two of the law enforcement interests present in Summers applied to Bailey: preventing flight should incriminating evidence be found and minimizing the risk of harm to the officers. Regarding the latter factor, the court expressed concern that a contrary rule requiring the detention of occupants as soon as they exit the residence to be searched would alert other occupants, who might then destroy evidence or endanger officers once they entered. Alternatively, in the district court’s view, under the Court’s 1968 decision in Terry v. Ohio, the officers had reasonable suspicion to stop Bailey and Middleton and return them to the premises.

During the jury trial, the prosecutor offered Bailey’s keys and statements as evidence that he lived at the apartment searched and therefore possessed the drugs found there. The prosecution also offered testimony from Middleton and Detective Fischer to support its contention that Bailey lived at the Lake Shore apartment.  The defense presented testimony, on the other hand, by the owner of the Lake Shore residence, who testified that she was then renting the apartment to someone else, not to Bailey. After the jury convicted Bailey on all three counts charged, the district court sentenced him to 360 months’ imprisonment, followed by five years’ supervised release.

The court of appeals unanimously affirmed, viewing the intrusion on Bailey as de minimis in light of the needs for officer safety and preservation of evidence. While acknowledging a division among the courts of appeals on the question of the scope of Summers, the court of appeals maintained that a ruling in Bailey’s favor would “strip law enforcement of the capacity ‘to exercise unquestioned command of the situation,’ at precisely the moment when Summers recognizes they most need it.” The court also agreed with the lower court that police in this case had met the “as soon as practicable” test, because Bailey was detained fewer than ten minutes before being returned to 103 Lake Shore Drive and without the officers trying to exploit the detention by obtaining additional evidence from Bailey during the search warrant’s execution. The appellate court did not, however, address the Terry question.

Bailey filed a petition for certiorari, which the Court granted on June 4, 2012.

In his briefs, Bailey argues that Summers does not apply to his case because the intrusion upon his Fourth Amendment interests was far greater than in Summers. In Summers, unlike here, an individual had been detained in the privacy of his own home rather than in full public view for several minutes before being handcuffed and transported in a marked police car. Moreover, the government’s interest is far smaller in this case, because someone who is not present at the scene of the search has no reason to believe it is imminent, and therefore neither any reason to tip others off to it nor any ability to interfere with the officers conducting it. The government’s speculation that such a tip or interference might occur would lead to a boundless rule, for it would permit the detention and search of anyone who is in any way connected to the premises being searched, regardless of where they are at the time of the search – even if they are never actually seen having contact with the premises. Concerns about a suspect’s flight if the search uncovers evidence would similarly justify detentions based on the hope that the search will be successful, again widely expanding what began in Summers as a narrow categorical exception to the probable cause and warrant requirements. Furthermore, the lower courts’ “as soon as reasonably practicable” formulation makes no sense because the speed with which someone is detained is unrelated to the interests in officer safety and preventing evidence destruction and involves judges in difficult case-by-case line-drawing. A supporting amicus brief of the National Association of Federal Defenders also argues that there was a dearth of empirical evidence showing a threat to officer safety from individuals who have left a residence before a search has begun and that state laws and police manuals direct officers to detain only individuals who are at or in the immediate vicinity of premises to be searched.

The United States begins by arguing that the stop was based on individualized suspicion that Bailey had committed a crime. Second, an occupant who leaves the premises to be searched may be returned to assist in the orderly completion of the search, such as by opening locked doors and containers. Third, an inability to detain someone who is leaving the premises might force officers to search before the team is fully ready to compensate for the fear that others inside the premises might be alerted to the impending execution of the warrant. Fourth, the nearby stop of a recent occupant is minimally intrusive next to the intrusiveness of the search itself, and returning him to his own home is surely far less an indignity than driving him to the police station. Moreover, initially detaining him a mile away, probably in front of strangers, is less humiliating than doing so before his neighbors, family, and friends. Finally, any rigid geographic limitation on detention was both unimportant to the Court in Summers and impractical.