What Qualifies as Detention 'Incident' to a Search?

What is the scope of detention incident to a search? Should the cops only detain a person who is on the premises to be searched, or can they detain a person of interest a mile away from the property?

In 1981, the Supreme Court concluded in Michigan v. Summers that the occupants of a house that is being lawfully searched may be detained to facilitate the search and promote officer safety. This week, the Court will consider whether police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

The Second Circuit previously ruled that the detention incident to the search warrant was legal.

In 2005, Suffolk County Police Department (SCPD) obtained a search warrant for the "basement apartment of 103 Lake Drive" in Wyandanch, N.Y. that was "believed to be occupied by an individual known as 'Polo', a heavy set black male with short hair." The cops were looking for a "chrome .380 handgun".

Before executing the warrant, two SCPD officers stopped Chunon L. Bailey and Bryant Middleton -- who both matched Polo's description -- about five minutes after they drove away from the apartment. During the stop, Bailey and Middleton indicated that Bailey lived at 103 Lake Drive ... until they learned the cops were detaining them incident to a search warrant for the apartment. To that, Bailey responded, "I don't live there. Anything you find there ain't mine, and I'm not cooperating with your investigation."

SCPD discovered a gun and drugs in plain view in the apartment. Bailey and Middleton were placed under arrest, and Bailey's house and car keys were seized incident to arrest. Later that evening, an SCPD officer discovered that one of the keys on Bailey's key ring opened the door of the basement apartment.

Bailey was charged, and later convicted of, possession with intent to distribute cocaine base and possession of a firearm in furtherance of a drug trafficking crime. He moved to vacate the conviction, arguing that government could not sustain his detention under Summers or provide the reasonable suspicion to sustain his detention under Terry v. Ohio based on the facts in the warrant.

The Second Circuit Court of Appeals ruled that, because the officers acted as soon as reasonably practicable in detaining Bailey once he drove off the premises subject to search, his detention did not violate the Fourth Amendment.

Bailey claims that someone who is not present at the scene of the search has no reason to believe it is imminent, and no reason to tip others off or interfere with the officers conducting it, SCOTUSblog explains. He further argues that the government's speculation that such a tip or interference might occur would lead to a boundless rule, allowing the cops to detain anyone who is in any way connected to the searched premises.

Do you agree with Bailey? Will the Supreme Court find that his detention violated the Fourth Amendment?

Related Resources:

• U.S. v. Bailey (FindLaw's CaseLaw)
• Michigan v. Summers (FindLaw's CaseLaw)
• Puppies, Privacy, and Probable Cause: SCOTUS Goes to the Dogs (FindLaw's Supreme Court Blog)