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Detention Incident to a Search

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The second Fourth Amendment case decided today involves the scope of detention of a person incident to the execution of a search warrant.  Over 30 years ago, the Supreme Court decided in Michigan v. Summers that the police can detain people on the premises or in the immediate vicinity when they execute a search warrant. Today's decision in Bailey v. United States, No. 11-770, involves people observed leaving the premises as the police prepare to execute the warrant and detained several blocks away.

The Supreme Court decided 6-3 that the reasons justifying the Summers rule do not apply to this context, at least not strongly enough to warrant an exception to the usual rules that the police need probable cause to arrest someone or reasonable individualized suspicion to briefly detain them.  The possibility that a person will attack the officers or interfere with the search is obviously greatly attenuated when he has left the premises.  (He could return, of course, and then the police could detain him.)  The third interest of preventing flight was not deemed strong enough to justify extension of the Summers rule.

Justice Kennedy wrote the majority opinion.  Justice Scalia wrote a concurrence emphasizing that Summers is a categorical rule, not one based on weighing the costs and benefits in the individual case.  Justice Breyer wrote the dissent, arguing that the distance from the premises in this case was not materially different from Summers.

Why is the Court willing to be more categorical in this case than in the dog sniff case decided today?  That case involves the question of whether there is probable cause for a search or seizure, the inherently vague standard that is actually in the Constitution.  The Justices are reluctant to impose rigid rules that will inevitably forbid some searches and seizures that actually are supported by probable cause, particularly when the result is the draconian remedy of exclusion of valid, probative evidence.  They are more willing to risk that result when the particular search or seizure at issue is not itself supported by probable cause but rather comes within a court-created exception such as being incident to another search or seizure.  Arizona v. Gant was such a case, and Bailey is another.

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