Agents executing a search warrant at business premises will typically detain officers and employees found there, neither allowing them to leave nor to move freely about, until the conclusion of the search. Doing so serves several purposes, including facilitating the interviews of those persons; protecting the agents; and preserving the integrity of evidence awaiting collection at the scene. In drug and gun cases, holding everyone in place also keeps the soon-to-be defendant from fleeing before law enforcement can gather up the incriminating contraband and identify the correct person to arrest.

The Supreme Court held thirty years ago, in Michigan v. Summers, 452 U.S. 692 (1981), that such temporary, warrantless detentions were reasonable under the Fourth Amendment as incidental to the search, for all of the foregoing reasons. But what if the officers detain an individual at some distance from the location being searched after he has departed the scene? A recent Second Circuit case explored the outer limits of lawful incidental detentions.

In United States v. Bailey, 2011 WL 2623442 (2d Cir., July 6, 2011), detectives armed with a warrant and looking for a gun observed Bailey driving away from a residence they were about to search. Bailey was stopped about a mile, and five minutes, from the home, detained but not arrested, handcuffed, and driven back to the residence in a police car. A gun and drugs were the found in the building, and Bailey was arrested and charged.

There is, as noted by the Second Circuit, disagreement among other courts of appeal concerning the detention of an individual so far outside the searched premises. The Fifth, Sixth, and Seventh Circuits have upheld detentions incident to search where those persons were seen leaving the subject premises, and where the stops occurred at various distances from the search scene; the Eighth and Tenth Circuits, on the other hand, have refused to extend Summers quite so far. Interestingly, the courts of appeal who have upheld away-from-home detentions have cited the flight risk concern of law enforcement, or the “don’t let him get away in case we find anything” rationale. The dissenting courts have, logically, noted that an individual unaware that his apartment is about to be searched cannot knowingly be fleeing anything.

The Second Circuit joined the majority, endorsing the detention of outbound individuals because a brief detention is de minimis and the detention supposedly protects the safety of officers and advances the preservation of evidence. The rationale of the Bailey court does not, however, withstand the barest scrutiny -- stopping a vehicle one mile from the residence, handcuffing the occupant, and forcibly taking back to the scene where he might blurt out an incriminating statement (“Hey, that’s my closet!”) is hardly a de minimis stop; the security of the searching officers cannot be jeopardized by an undetained departing individual, only by a freely returning one; and evidence collection is, if anything, improved by the departure of the resident of the place being searched.