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?
It is due to the non-originalists’ perspective that we now have such fkt up 4 amendment jurisprudence.
The 4th amendment has been twisted, mangled and contorted by the very logic that says the constitution is a ‘living’ document.
That is a false view that seeks to empower our rulers to make the constitution anything they want it to be for the moment, to suit their purposes.
As Gene here said, the founding fathers knew that the Constitution needed to be flexible and changeable as the times changed, But that is why they provided a due process procedure in which to do that.
If the Constitution is to be changed, it is to be via the amendment process, where the whole nation has a say in it. Not 9 individuals who we can only hope to do the right thing, but have way too much ‘flexibiity’ in their interpretative power.
Excellent article and not slanted in the least…. Reporting just the facts….. My opinion would be that the problem police are a little too late…..for what he date…. The sct will probably say…. It’s justified….
What Indigo said.
If the Founders had intended for Originalist interpretation to hold, they wouldn’t have amended the Constitution nor left a mechanism in place for future amendments. They knew the law had to be flexible enough to change with both society and circumstance. They also hoped their descendants would be well educated and civic minded enough to understand the difference between an absolute threshold in a right versus reasonable restrictions on a right (see Free Speech and its reasonable restrictions for an example). We know what the 4th affords us, but the question is how much of it will we let those against the right erode it in the name of safety and in the name of fighting something – terrorism – that is just as likely to kill you as your own furniture.
@mahtso
Something more like the “living document” theory is probably what the Founding Fathers had in mind, as ethnic Brits.
As I understand it, the Magna Carta is still on the books and the British aren’t technically citizens, but subjects: from a certain perspective, the Bill of Rights we Americans enjoy — that we treat as sacred — may have been a more or less inevitable result of European (and specifically English) legal tradition. A lot of European countries enjoy “American-style” liberties without having waged a violent anti-colonial struggle, or having cast off monarchy. It’s worth noting in this connection too that Europe didn’t really cast off the last vestiges of the feudal system until WWI (the new, American aristocracy wanted to avoid at all costs the communal, feudal social order from re-emerging). And state-run health care hasn’t turned Germany into a Fourth Reich yet: they seem quite comfortable with it.
It you take a strict constructionist approach to the Constitution, you’re left with certain really basic problems, like: the Constitution doesn’t give you a right to vote, or to quit a crappy job.
Thanks rafflaw, quite informative.
OS, I have much empathy for your daughter and you. May the Good Lord protect her and give her the wisdom to handle difficult situations. I would worry about my wife when she worked in maximum security prisons, so I do have a frame of reference.
“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.”
This is why the idea that the Constitution living is troubling: if it is living, we can never know what protection the 4A will give us.
OS,
I agree that we want all of the police authorities to be safe, but the argument by the government seems overbroad.
Kraaken,
My pretty twenty-four year old daughter just left the house for work. Wearing her black and green uniform, tactical utility belt and spit-shined boots. I am leaving the porch light on for her when she gets off duty tonight.
I do not want a guy in uniform knocking on my back door at midnight a second time. Once is quite enough. Whatever it takes to keep her safe, I am for it.
So supposedly this group is not sympathetic to me because they think I’m self centered or stupid to try to push for my rights even though I don’t have a lawyer, but I was detained 3 times for 5 months with no oath or affirmation — my case was initially about what a warrant is; whether there can be a federal bench warrant not requested by a government prosecutor, not stating a crime. Then even if you believe that there is an offense called federal civil contempt, in my case there was no affidavit under penalty of perjury by anyone that there was cause to charge or arrest me. Then they went straight from arrest to detention with no intermediate steps, no arraignment, no bail hearing, no complaint, no indictment, no trial etc. And I wasn’t voluntarily without a lawyer, they said in Court that I didn’t have a right to an attorney.
Things are a lot different now because in July 2011 the FBI revealed that the USMS actually entered non existent criminal charges against me into DOJ computers. In July 2012 the feds revealed that they don’t have a record of a statute under which I was detained.
When Justice Roberts walks by a jail, lock him up. He is too close for someone’s comfort.
““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.”
Oh by ALL means. Let’s trample on the rights of the citizen so that we can insure the safety of the well armed and over-militarized SWAT team.
Good job, Raff. This is something that needs more attention.
Amen Gene!
Scotusblog,
Thanks for the factual background.
Mike,
As one who has also been handcuffed, it is not a fun exercise. Especially if the officer in question has a pea in his saddle. The issue of importance is that the government’s argument can lead to to some exteme situations where innocent citizens are detained merely because of their proximity to a specific location. The handcuffing is just part of the process of being “detained”, albeit an uncomfortable part!
Excellent job, Raff. I’m sure you’re not shocked to find out that I think 4th Amendment rights should be narrowly construed in favor of the citizen. A slope of any kind, slippery or not, should be viewed with the greatest of scepticism all the while keeping in mind the admonishment of Franklin that “[t]hey who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
And what Justice Holmes, Indigo Jones and Mike S. said.
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.”
http://www.scotusblog.com/?p=154192
Well done Larry, quite apropos for this blog. I think that these detentions should not be allowed, without direct evidence of a link to the purported criminal activities. This appears to me to be yet another increment of the Constitutional erosion begun with the “War on Drugs”. In effect it makes the scope of search warrants far broader than the intent justifying the warrant itself. Contained within this is a presumption of guilt via association, where one must prove themselves innocent, rather than the other way around.
“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.”
I would also wonder if the SCOTUS judges who decided this had ever been handcuffed themselves. I’ve described before being handcuffed 40 years ago for a minor traffic violation for which I was eventually fined $15. Being handcuffed, with yours arms in back is a painful proposition, that somewhat borders on torture. While I understand the need for police to ensure their safety, sometimes the issue is less safety and more humiliation and pain.
Sounds somewhat similar to Spinelli v U.S. No relation!
It is important to note that while Fourth Amendment protection for real human people have been watered done to almost nothing corporations have been able to expand their rights thus avoiding inspections by various government agencies including but not limited to the FDA.
The court has turned its back on the rights of humans allowing police and other “law enforcement” agencies to treat every one as a criminal, guilty until proven innocent. Not what the founders would have wanted at all.
As I’ve observed laws written in order to be interpreted in these sorts of ways, (for example, provisions in the 2012 NDAA, the “secret PATRIOT ACT” Senators Udall and Wyden allege; hair splitting over whether detaining prisoners outside the US in Guantanamo excempts the military from obeying the Geneva Conventions, etc.), I’ve wondered about these types of Constitutional questions.
I think the first thing to keep in mind is that the Constitution wasn’t really meant for people like us — unless you’re more like Mitt Romney than Ralph Nader. The Founding Fathers were really concerned with protecting their new aristocracy from the “interested combinations of the majority.” In this context, the US Revolution wasn’t so much a rejection of monarchy, as it was a casting off of our status as a colony. It was about replacing one aristocracy with another, first and foremost.
That said, as Amendments have been added extending the sphere of “constitutional protections” there seems to be a counter-balancing force — a pushback. Does 24-hour electronic dragnet surveillance (or, the ability to surveil somebody “retroactively” because all data transactions are monitored) pose a problem for Miranda Rights or the 5th Amendment’s protection against self-incrimination? If internet service providers are granted retroactive immunity for illegal surveillance activity, and effectively deputized to spy on us (find a copy of the Yahoo Law Enforcement Compliance Guide, or the Sprint CALEA Compliance Guide — these are menus, for-profit ala carte law enforcement) — what does this mean for the Third Amendment where DSL enters your home?
It’s been looking for a while now like the 4th Amendment is toast…