February 20, 2013 12:27PM

Supreme Court Rejects Roving License to Detain People Incident to Far‐​Away Search

While the Fourth Amendment may not have passed the smell test in one Supreme Court ruling yesterday — which problem would effectively go away if we ended the Drug War — it handily survived questionable police tactics in a far more important case, Bailey v. United States

In Bailey, the Court rejected the argument that police should be able to detain someone anywhere at any time if they see that person exiting a location for which there’s a valid search warrant. Instead, by a 6 – 3 vote in an opinion written by Justice Anthony Kennedy, the Court ruled that the power to detain incident to the execution of a search warrant — established in the 1981 case of Michigan v. Summers — is limited to the “immediate vicinity” of the premises to be searched. 

The police may want broader detention powers, but none of the justifications for the Summers exception to the normal probable cause requirement — officer safety, facilitating the search, preventing flight — remain in cases where police detain someone beyond that immediate vicinity. In Bailey, police saw the defendent leave a home they were about to search and, rather than detaining him there and executing the search warrant, followed and subsequently stopped him nearly a mile away. 

As I wrote last summer when Cato joined the ACLU in filing a brief in the case, the government’s argument here had to fail for at least three reasons: 

First, the extension of Summers lacks any limiting principles to the power to detain without probable cause. A warrant to search a particular place would be transformed into a roving license to detain any person thought to be associated with that place.

Second, the attempt to establish a limiting principle by requiring the detention to occur “as soon as practicable” is inconsistent with the underlying values of the Fourth Amendment and provides no clear guidance to officers.

Third, the extension of Summers is unnecessary to ensure that officers maintain control of the premises during a search. The detention of an individual away from the searched premises is merely a means of holding someone pending the speculative emergence of probable cause.

The Supreme Court agreed, albeit with an unusual trio of dissenting justices: Stephen Breyer, Clarence Thomas, and Samuel Alito.

Congratulations to Kannon Shanmugam, the co‐​author of the “Looking Ahead” piece in last year’s Cato Supreme Court Review, who argued Bailey. (Full disclosure: My fiancee, Kristin Feeley, was on the briefs — so congratulations to her too.)