February 20, 2013 12:27PM # Supreme Court Rejects Roving License to Detain People Incident to Far-Away Search By [Ilya Shapiro](https://www.cato.org/people/ilya-shapiro) --- SHARE While the Fourth Amendment may [not have passed](https://www.cato.org/blog/clever-hans-vs-fourth-amendment) the smell test in [one Supreme Court ruling](http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf) 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](http://www.supremecourt.gov/opinions/12pdf/11-770_j4ek.pdf) 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](https://www.cato.org/blog/fourth-amendment-doesnt-allow-roving-licenses-detain-people-without-probable-cause) when Cato joined the ACLU in filing [a brief](https://object.cato.org/sites/cato.org/files/pubs/pdf/bailey-v-united-states.pdf) 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](https://object.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2012/9/scr-2012-shanmugan.pdf) 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.) ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).