Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger
We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person. ‘ “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ “ Cornell Law
Over the years, this valuable right has been watered down. Recently, the Roberts Court heard arguments in a case that did not get much media attention. That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant. The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012. Bailey v. United States The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location. Sounds like a no brainer, doesn’t it?
Approximately 30 years ago, the Supreme Court decided Michigan v. Summers. In that decision, the Court decided that police officers can detain any and all occupants of a location where a search warrant was being executed. That decision does not sound too bad, since police officers executing a search warrant could be in danger from the occupants of the location being searched. The Supreme Court in the Michigan v. Summers decision muddied the waters somewhat when they went beyond the safety issue and reasoned that the occupants had to be detained and handcuffed to help in the orderly completion of the search process.
” Instead, the Court said the rule was also justified to facilitate “the orderly completion of the search” by forcing the occupants to remain in case their assistance was needed with opening locked cupboards and doors. But the police cannot compel people to assist in a search, and individuals can decide whether they wish to do so without being held captive. There are few people who become more cooperative by being handcuffed than being asked nicely.” ACSLaw
Can you think of any instances where this extension of the Michigan v. Summers holding would harm or denigrate your rights? In theory, if the government case is upheld by the Supreme Court, any person who has recently been at or near a home or building where a search warrant is being executed, could be subject to detention and handcuffing by the police. Without any evidence of the detained person or persons having any connection to the alleged activity that is the cause of the search warrant, people can be detained and interrogated. It sounds like a very slippery slope to me.
“The government’s brief suggests that a recent occupant of the premises could be tipped off about the search and return to attack the officers. The briefs of both Bailey and amici ACLU pointed out that this is a slippery slope; if extensions to the rule can be justified based on the fear that an occupant might return to take on an entire SWAT team, there is no reason to limit the rule to those who have recently left the premises. Rather than proposing a clear boundary for the doctrine, the government’s brief somewhat surprisingly appeared to slide all the way down to the bottom of the slope, arguing that the Summers automatic-detention rule applies to anyone who usually lives in the house, regardless of whether they were near the house when the police began the search. If the Court accepts this theory, the government could try to detain any resident of a house to be searched, whether they were at work or grocery shopping, before the police had uncovered sufficient evidence linking them to the crime (or indeed, even sufficient evidence that there was a crime).” ACSLAW
Without putting the police at further risk, wouldn’t it make sense to insist that the police must provide evidence that the person being detained pursuant to a search warrant, has some connection to the alleged illegal activities? This is especially important when we have had numerous occasions where the police have searched the wrong residence!
If the government’s argument is accepted by the Supreme Court, isn’t the 4th Amendment’s importance dismissed, at least in regards to people who are detained on and off the site of the executed warrant? How do you think the Supreme Court should decide this very important 4th Amendment case? What are the reasons for “your” decision?