On

behalf of The Marks Law Firm, L.L.C posted on: http://www.missouricriminaldefenselawyers.com/supreme-court-limits-certain- types-of-seizures/ on Tuesday, February 19, 2013 Supreme Court Limits Certain Types of Seizures On Tuesday, the U.S. Supreme Court handed down its opinion in Bailey v. United States, setting forth limits to one particular type of seizure the detention of an individual incident to the execution of a search warrant. Over thirty years ago, in Michigan v. Summers, the Court decided that when the police go to a home to execute a search warrant, the police can detain the individuals in the home (regardless of whether any occupant is suspected of any criminal activity) so that the officers executing the search may do so without fear of interference or threat to their safety or destruction of evidence. In Bailey, the Court had to determine if the rule in Summers allowed detention of individuals who have already left the home prior to the execution of the search warrant. The defendant in Bailey was present with several other individuals in an apartment for which the police had secured a search warrant for a handgun. As the search team prepared, two officers had the apartment under surveillance. They observed the defendant and two others leave the apartment, get into a car and drive away. The officers followed and pulled the vehicle over after a five-minute tail. The officers had the occupants exit the vehicle and did a pat down search. They found no weapons or contraband, but did find keys in the defendants pocket. Though they found nothing suspicious, the officers placed the defendant in handcuffs and told him it was pursuant to the execution of the search warrant of the apartment. The search team found drugs in plain view in the apartment, and also located a handgun. The police seized the keys on the person of the defendant; one key opened the door to the apartment. The key was critical to the prosecutions case, because the defendant denied he lived at the apartment and multiple people had access to the apartment. Without the keys, the government could not prove ownership of the contraband. The defendant moved to suppress the evidence, but the trial court denied the motion as a proper application of Summers, and the appellate court agreed. The Supreme Court, in a 6-3 decision written by Justice Kennedy, reversed. The majority held that none of the rationales supporting the detention of individuals in a home during the execution of a search warrant justified the extension to a car located miles from the search. At the time of the execution of the search, the

defendant was not present and posed no risk of harm to officers executing the search. In evaluating whether Summers should extend this far, Justice Kennedy went through the various law enforcement interests used to support the exception in the first place and found them wanting under these circumstances. Justice Scalia, in a concurrence joined by Justices Ginsburg and Kagan, would reach an easier decision Summers is a categorical rule that applies to occupants of the house at the time of the search. Because the defendant was not present, he could not be considered an occupant and should not have been detained incident to the execution of the search warrant. The takeaway from the ruling: police cannot categorically detain individuals when executing a search warrant of a residence unless the individuals are present at the residence (inside or immediately outside) at the time of the execution of the search. Bailey represents a good victory for the Fourth Amendment and common sense.