Posted on November 6, 2012 at 11:33 am by Andrew Taslitz
Last week the Court heard oral argument in Bailey v. United States. At issue in Bailey was whether Michigan v. Summers – which permits police to detain persons on premises during the execution of a search warrant – extends to allow police to detain someone whom they observed leaving the premises to be searched seven-tenths of a mile away from those premises. In this case, police not only stopped Bailey’s car but searched him, finding a key in his pocket that – they later learned – opened the front door of the premises. He also made statements during the stop linking him to the premises. Police returned him there for completion of the search. Police found drugs and a gun in the house during the search. At trial, Bailey was convicted of possessing the drugs and gun, with the key and his statements forming an important part of the evidence against him.
Arguing on behalf of Bailey at the Court, attorney Kannon Shanmugam asserted that Summers is limited to suspicionless detentions of persons in the “immediate vicinity” of the premises to be searched when the warrant is executed. Beyond that immediate vicinity, he argued, the usual rules for detaining someone — Terry stops and frisks of individuals, where there was respectively reasonable suspicion that they were involved in criminal activity or that they were armed and dangerous, and probable cause to arrest or conduct full-blown searches — would apply. Although the application of Terry was not before the Court, in response to questioning by the Justices, Shanmugam insisted that there was no reasonable suspicion justifying the detention and search of Bailey’s person under Terry; therefore, there certainly was no probable cause. He argued that the most important justification for the Summers rule was protecting police officer safety, but the government had no empirical evidence demonstrating a serious risk that individuals who leave the premises without having seen the police are likely to return to threaten the officers or to warn compatriots on the premises to do so. Moreover, the abstract, theoretical danger of persons of ill intent returning to search the premises is both unpredictable and ever present, as likely to occur hours before or after a search as during it. That is why police routinely do, and certainly should, station some officers as lookouts while a warrant is being executed.
Furthermore, argued Shanmugam, because the Summers rule is an exception to the usual probable cause and warrant requirement and is a categorical rule applying to all warrant executions, the rule must be interpreted narrowly. The rule itself was unsupported by the Fourth Amendment’s history, and expansion of the rule’s prophylactic nature would permit ready and broad invasions of privacy based on little more than speculation that they were needed. For similar reasons, including especially the improbability that someone who has left would return to the scene, a second aspect of the Court’s rationale in Summers – that detention was necessary to prevent obstruction of the search process – did not apply. Nor was it likely that a detained person would want to return to assist law enforcement in its efforts. Indeed, although the burden should be on the government to prove the need to expand a narrow categorical exception, the government had not identified “a single example of an individual who is seen leaving the scene who has returned to disrupt the search in that fashion.”
As for the last rationale of Summers, preventing people who may be guilty from fleeing, Shanmugam stressed that that rationale, standing alone, could not win the day unless the other rationales applied to the current circumstances, which they did not. The flight-prevention rationale alone offered a slippery slope, justifying the detention of anyone who was even loosely connected to the premises to be searched, regardless of how far they were from the premises in time and space and whether they even knew that a search was occurring. The flight rationale was also a justification more akin to a traditional criminal search than to the “special needs” that justified Summers.
Most of the Justices seemed to be struggling with Shanmugam’s arguments, though less so than they would later with those of the government. But Justice Scalia’s comments suggested that he had squarely made up his mind that the detention and subsequent search of Bailey was unreasonable under the Fourth Amendment. For example, while Shanmugam said that Terry’s application would be a novel issue for the Court’s resolution, Justice Scalia did not see the issue as novel at all. To the contrary, he suggested that the length of Bailey’s detention, the police handcuffing him, and their actions in returning him to the scene went well beyond the sort of brief detention to confirm or dispel suspicions that Terry permitted. Justice Scalia also expressed approval for the immediate vicinity test and took issue with giving it too expansive an interpretation. Indeed, he was troubled by the suggestion that it extended to the physical bounds of the property because that could encompass very large properties, such as a fifty-acre farm.
Several other Justices, including Sotomayor, Kagan, and the Chief Justice, however, pressed Shanmugam on the meaning and workability of the “immediate vicinity” test. Shanmugam argued that the primary justifications for the Summers rule and its limited nature favor a narrow definition of immediate vicinity as a geographic area in which there is a significant risk of harm to either the officers executing the warrant or their ability to do their work efficiently. Justice Alito suggested that the immediate vicinity rule undermined officer safety because it required officers to stop a person on the premises, thus tipping off anyone inside that the search was afoot. But Shanmugam emphasized that the police could choose not to detain someone at all, as mere presence alone would not establish reasonable suspicion to believe that someone was involved in a crime. Shanmugam also drew an analogy to the rule in Maryland v. Buie, permitting suspicionless protective searches of areas of a home “immediately adjacent” to the place of arrest. The Buie rule had proven workable, so there was no reason to believe that a similar immediate vicinity rule should prove less so. The Chief Justice expressed concern that the immediate vicinity test was too costly, requiring additional officers to be present at the scene purely to serve as lookouts. But Shanmugam insisted that the government’s seize-as-soon- as- practicable test was the more costly, routinely requiring an additional two officers to track someone seen leaving the premises. Finally, he argued that the test that the government was advancing was actually more like “the authority to detain any individual with a connection to the place to be searched” than an “as soon as practicable” test.
Arguing on behalf of the United States, Assistant to the Solicitor General Jeffrey Wall insisted that the government was not positing a mere “connection-to-the-premises” rule but instead would require an “observable connection.” The government conceded that police departments with sufficient resources to do so should post sentries whenever officers are executing a warrant, regardless whether anyone was seen leaving the premises. Nevertheless, the government suggested that the danger to the officers from individuals leaving the premises to be searched was particularly high while a warrant is being executed because those individuals often return. While conceding that there was a danger, Justices Sotomayor and Scalia expressed skepticism that an individual observed leaving the premises necessarily heightened that danger. Justice Scalia flatly declared that, in a case like this one, it was “implausible” that someone presenting a danger to the police or the search who has just left the premises would return there during the search. Wall argued that, although only a “foolhardy person” might do so, “that is a perfect description of many criminals who do not tend to be level-headed rational actors.” But, explained Justice Scalia, “You don’t adopt absolute rules to cover foolhardy people.”
Justice Kagan suggested that the proposed rule was too broad because many people might leave the premises for perfectly ordinary reasons, such as going to work. Justice Sotomayor questioned what legal authority would justify preventing flight, to which Wall responded that an individual’s presence on the premises during or close to the execution of the warrant established such reasonable suspicion. Justice Scalia expressed particular concern that the reasonably practicable test was not sufficiently clear and absolute to help police officers. Wall countered that the Summers suspicionless detention rule applied to whom the police may stop (anyone observed leaving the premises), but the usual, more flexible Fourth Amendment reasonableness test governed where the detention could be made. To Justice Sotomayor’s explanation that probable cause was the default reasonableness rule, Wall responded only that Summers creates a class of situations in which reasonable suspicion is automatically assumed to exist and that such suspicion is sufficient. Several Justices then explored the feasibility of simply stopping and detaining someone leaving the premises under Terry, rather than returning him to the search location, until the search was completed. But Wall argued that most courts would view a lengthy detention as turning a Terry stop into an arrest, requiring probable cause, such that only a Summers-rule extension could cover the posited situation.
The Chief Justice suggested that there was an inconsistency between the officer safety and assisting-the-police rationales. Someone posing a danger to police is unlikely to assist them. Someone assisting them is unlikely to pose a danger and thus need not be detained. Justice Breyer likewise described the idea of a dangerous or guilty person whose premises are being searched assisting the officers as “fanciful.” Wall insisted that there were ample examples to the contrary.
Justice Scalia suggested that the government’s rule would allow the mere existence of the search warrant to justify detaining anyone connected with the premises, a sharp break from the particularity-of-description requirement of the Warrant Clause. But Wall insisted that the government was not arguing for an expansion of Summers; instead, it was merely seeking to have the Summers rule faithfully applied. Nor was there evidence of police abuse of Summers or behavior suggesting that law enforcement viewed Summers as creating an “entitlement” to search freely. Furthermore, Bailey’s proposed rule was “severely under-inclusive” because it would bar officers from serving the Summers interests the moment a suspect crosses some “magical gate”; merely following the suspect would not be a solution because it is risky and does not adequately protect against the risk of flight. That argument prompted Justice Scalia to respond: “All law enforcement would be a lot easier if we didn’t have the doggone Fourth Amendment. I mean, the Fourth Amendment is an impediment to law enforcement. Of course it is.”
In his rebuttal, Shanmugam made two central points. First, Summers created a no-suspicion rule rather than a “reasonable suspicion” rule, and thus provides so little protection for privacy and freedom of movement that its expansion is unwise. Second, no historical evidence supports Summers, an observation that does not require jettisoning Summers but does require reading it narrowly.
Predicting case outcomes from oral argument is always a risky business. Nevertheless, the most vocal Justices during oral argument on balance seemed to express far deeper concern about the government’s position than Bailey’s. Few, if any, of the Justices’ comments or questions suggested a serious defense of the government’s position. That does not bode well for the United States. Time will tell.