In search of bright lines
As the comics say, timing is everything. George Summers didn't have it; he happened to walk out of his house just as the police were about to enter it pursuant to a search warrant. They detained him while they searched the property, and after finding drugs in the basement and determining that he owned the house, arrested him. He had over 8 grams of heroin in his pocket, and argued that it should be suppressed because he had been illegally detained. The Michigan courts bought it, but thirty years ago in Michigan v. Summers, the Supreme Court reversed by 6-3 vote, and established a bright-line rule: a search warrant carries with it the authority to detain the occupants of the premises while the search is conducted.
Where Chunon Bailey spends the next 30 years of his life depends upon whether the Court finds his timing was better: he got out of the house just as the police were arriving, but before he saw them. He hopped in his car and drove off, and the police followed, stopping him about a mile away. They searched him and found a key to the house on him, and used that to tie him to the ownership of the drugs and guns they subsequently found. So a couple weeks back, the Supreme Court held oral argument in Bailey v. US to see whether the Summers rule would be extended, and how far.
The complexity of 4th Amendment law leads to the search for bright lines: whenever possible, the police should be given specific guidance on what they can and cannot do. The categorical rule in Summers was intended to provide just such guidance. Of course, a rule has to have some basis, and Summers found three: detaining someone could lead them to assist in completing the search (opening up safes, restraining dogs), it could stop them from fleeing, and it prevented them from harming the officers.
But once you expand the categorical rule beyond detaining the occupants of the premises, you blur the lines, and that's where everybody ran into trouble. Summers wasn't inside the house, but at least he was in the vicinity of it, which is more than could be said for Bailey. The 2nd District, in affirming Bailey's conviction, held that the appropriate test wasn't whether the detainee was in the vicinity of the property, but whether the police had detained him "as soon as practical." Little time was spent on that formulation, with Bailey's lawyer, Kannon Shanmugam, arguing that "vicinity" should serve as the dividing line. That prompted inquiries about what "vicinity" meant. The boundary lines of the property? No, suggested Scalia; what about a 50-acre farm? he asked. A better rule would be to limit the area of allowed detention to the curtilage.
Scalia was probably the most helpful to Shanmugam; at one point during the Assistant SG's presentation about how adopting Bailey's rule could hamstring law enforcement, Scalia ascerbically noted that "all law enforcement would be easier if we didn't have the doggone Fourth amendment." But other justices expressed concern with the effect that restricting Summers might have on law enforcement.
That wasn't necessarily helpful to the government's position, though. Of the three considerations which drove Summers, flight wasn't applicable here: everybody acknowledged that Bailey had no idea the officers were about to conduct a search. (What wasn't mentioned was whether there was anybody in the house who might have alerted Bailey to the search after he left.) The government could point to numerous examples of where someone had been detained and brought back to the premises to help complete the search, but the chief concern was officer safety, and here the government ran into a problem: it couldn't produce a single example where someone who'd been allowed to leave the premises had returned to pose a threat to the officers conducting the search. What's more, as Sotomayor pointed out, the threat of the subject returning to the scene of the search was the same whether he just left or had left ten hours earlier; did that justify the police in, say, detaining someone at work just because they might leave and return to the search scene?
There was another issue which emerged during the argument: could Bailey's detention be justified not under Summers, but under Terry v. Ohio? The 2nd Circuit hadn't reached that issue, but it was posed by several of the justices. After all, the magistrate had found probable cause for believing that a gun was in the house. Bailey matched the description given by the informant of the person who was selling drugs from the place. That would arguably create reasonable suspicion for detaining Bailey, especially considering that his house was going to be searched, and the invasion of privacy involved in a detention was de minimis compared to that.
Arguably, maybe, but maybe not. As Scalia pointed out, this wasn't really a Terry stop; the cops not only stopped Bailey's vehicle, but arrested him, put him in handcuffs, and searched his pockets. (That's where they found the key, which would prove critical evidence in convicting him.) And again, adopting that reasoning would completely unhinge Summers from its moorings. The search warrant gave probable cause to believe there was a gun on the premises. It gave no basis for believing that Bailey was carrying it when he left, and finding that it did would create a basis for believing that Bailey had it wherever he happened to be; the same logic would have allowed him to be detained if the police encountered him on the other side of town.
The major problem with the government's argument is that it doesn't provide a bright line: it doesn't tell you what the limits of detention really are. As Scalia noted, the government's proposed rule "doesn't give you a where. You need more than a who. You need a who and a where." That might just be enough for a majority of the Court to limit Summers to detentions made in the immediate vicinity - the curtilage - of the home.