While executing search warrants for homes, police customarily encounter the occupants of the residences. Sometimes a warrant may even authorize the arrest of the occupant as well. But even if it doesn't, the Terry rule authorizes limited detentions of the home's occupants if police have a reason to believe the person may either interfere with the search, flee, or destroy evidence. It's clear that the practice also protects the officers' safety.
All of this assumes that police know who the occupant of the premises is. If they do, and the warrant describes items to be seized which, if found, would provide probable cause to believe the occupant is committing or has committing a crime, such a fact provides added incentive and justification for detaining the occupant while the search goes on. But what if police do not know who the people are that they find on the premises? What if there are multiple residents? What if there are guests and visitors? Can they be detained and handcuffed as well?
The United States Supreme Court has spoken broadly to these issues on several occasions, though its holdings may not resolve all possible scenarios. So let us review the applicable precedents.
The first one of these precedents is Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338 (1979). In the Ybarra case, police officers obtained a valid warrant to search a tavern and its bartender. The warrant commanded the search and seizure of evidence of possession of a controlled substance. When they entered the tavern, the officers observed a row of patrons sitting on bar stools and at tables.
The officers conducted a patdown search of all the customers present in the tavern. This included Ybarra, who was found to possess six tinfoil packets of heroin stuffed in a cigarette pack. Holding that the patdown search violated the Fourth Amendment, the Supreme Court stated that “a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” Thus, the Court held that the search warrant for the tavern did not permit body searches of all of the persons found on the premises. Neither could the police automatically conduct a limited Terry-type patdown search for weapons of the patrons, absent particularized suspicion justifying the officer's belief of possible danger to them.
IS A HOME IS DIFFERENT FROM A TAVERN?
Merely two years later, the Court reached a different result in a case involving the detention of a person during a home search. The case was Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981).
In Summers, Detroit police went to a home to execute a search warrant for narcotics. As they approached the house, they came upon the defendant, who was descending the front steps. The officers told the man they had a search warrant for his home. Asking for his assistance in gaining entry, they detained him while the premises were being searched. In the basement, they found narcotics. After ascertaining defendant was the owner of the house, he was arrested. In searching his person incident to the arrest, they discovered “an envelope containing 8.5 grams of heroin” in his pocket. Was Summers' detention an “arrest” requiring probable cause? By what reasoning did the Court justify upholding the search?
A number of facts made Summers different from Ybarra. While arrests normally require probable cause, detentions of persons that fall short of a full-blown arrest are sometimes permitted when there are substantial law enforcement interests that make the detention reasonable. There is no question but that the entry into the home was an important intrusion upon the personal liberty of its occupant. But that entry was justified because there existed a search warrant for the premises, issued by a neutral and detached judicial officer who had determined that probable cause existed to issue the warrant. While the detention of the resident during a home search was a significant additional restraint on the resident's liberty, it was less intrusive than the home search itself. Further, by detaining Summers, the officers were not seeking to exploit the search, or unduly prolong it, because the officers were primarily seeking information from the search itself and not the detention. “Lastly, the detention was inside the defendant's home instead of in a police station, thereby minimizing the public stigma associated with the event and involving neither the inconvenience nor the indignity associated with a compelled visit to the station.”
What are the law enforcement interests justifying detention apart from the execution of the search warrant? The Supreme Court has identified three different interests: (1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk of harm to the police and occupants if the officers routinely exercise unquestioned command of the scene; and (3) facilitating the orderly completion of the search by having the occupant of the premises present to open locked doors or containers to avoid the use of force which damages property and could delay completion of the search. The Court would in a later case add that the detention of an occupant incident to the execution of a search warrant “is categorical; it does not depend on the quantum of proof justifying detention or the extent of the intrusion imposed by the seizure.” See, Muehler v. Mena, infra.
These enumerated interests have led other courts to conclude that when police have a warrant to search for contraband and the warrant is based on probable cause, such a warrant implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The Summers case said nothing, however, about either the handcuffing of occupants or of the guests in a home.
A MORE RECENT CASE CONSIDERED
The Court had occasion to consider the general issue more recently in Muehler v. Mena, 544 U.S. ...., 125 S.Ct. 1465 (2005). While the case arose out of a damage action for an alleged violation of § 1983 of the Civil Rights Act of 1984, it is based on important Fourth Amendment principles. Ms. Mena and several other occupants of her residence were detained in handcuffs during a search of her home pursuant to an admittedly valid search warrant for weapons and gang paraphernalia. Because the police suspected Ms. Mena or some of the other occupants might be illegal aliens, they also invited agents of the Immigration and Naturalization Service (INS) to accompany them when the warrant was executed. Additionally, because police suspected serious armed gang activity at the home, they invited a Special Weapons and Tactics team (SWAT) to secure the residence and the grounds before the search was commenced.
The SWAT team members entered the home, found Ms. Mena in her bedroom, and placed her in handcuffs, moving her and several other occupants found in the house to a rear garage that had been converted into living quarters. All detainees were kept in that garage for two to three hours, during which they were also asked for their immigration documentation. Meanwhile, the search of the home commenced and it resulted in the seizure of weapons and considerable additional evidence. After the search was completed and it had been established that Ms. Mena was a permanent resident and therefore “legal,” she was released.
The case involved more than merely handcuffing, however. In her § 1983 suit, Ms. Mena contended that she was detained “for an unreasonable time and in an unreasonable manner.”
In deciding the case, the Supreme Court held that the case was clearly covered by the Michigan v. Summers precedent. If Summers needed to be expanded, the Court did so explicitly in the Mena case by recognizing that the imposition of handcuffs on Ms. Mena, who was already being lawfully detained during a search of her house, was a separate intrusion in addition to moving her to the converted garage - thus making this detention clearly more intrusive than the one upheld in Summers. The Court found there were significant additional circumstances here that justified police detentions; it referred to the suspicions there might be heavily armed gang members inside the home. The Court said:
“In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable.”
Was the questioning of Mena about her immigration status also permitted as incident to the detention? That is of course a different issue; it does not involve the Fourth Amendment's search and seizure provisions. Since the Fourth Amendment was deemed to be satisfied by the existence of the valid search warrant, the other inquiry would, at best, involve Fifth Amendment concerns. But since Mena had not been “compelled” to talk, and the questioning related solely to identification data, the Court did not reach a possible violation of Miranda - an issue which the complainant had, incidentally, not raised on appeal either. But the Court did note that the questioning did not prolong the time during which Ms. Mena was detained, which then led it to conclude that no additional justification was required for the inquiry about Ms. Mena's immigration status.
CAN POLICE HANDCUFF VISITORS WHEN THEY ENTER?
Neither Summers nor Mena specifically make the distinction between handcuffing occupants of premises and applying the same restraints to persons who are merely guests. Does that require a different analysis?
We draw your attention to our discussion of the opinions of four justices in the Mena case which upheld the use of handcuffs only because of what the concurring justices determined that the case involved “extreme” circumstances: gang membership and potentially heavily armed occupants. That, we suggested, made the Mena case far less authoritative in allowing indiscriminate use of handcuffs during home detentions? Furthermore, can we apply the same principles - the use of handcuffs - to guests found in a home that is being searched? Or does that bring us closer to an Ybarra v. Illinois situation?
An Illinois Appellate case involving the execution of a search warrant by Chicago police struggled with those distinctions in People v. Calvin Conner, ..... Ill. App.3d ....., No. 1-03-1627, decided on June 30, 2005 by the First District Appellate Court. In Conner, search warrants were being executed simultaneously at two different locations: one at a South Bell Street home, and another at a South Laflin Street residence.
In the course of the Bell Street search, an officer confronted Conner and two other individuals on the premises. All three were handcuffed ostensibly for the safety of the officers and the entry team, and to make sure they didn't interfere with the execution of the search warrant. Conner was discovered near the rear of the house. While the officer detaining Conner stated he was being held “for safety,” he did admit that Conner would not have been allowed to leave had he desired to do so. During the detention, the officer learned Conner's name and birth date. Feeding this information into a computer terminal in a squad car, the officer found out that there was an outstanding warrant in another county ordering Conner's arrest for possession of a controlled substance.
ADDITIONAL CONNECTIONS DISCOVERED
Upon learning this information, the officer relayed it by radio to his colleague who was executing the Laflin Street warrant. That officer conveyed the further news that, at the Laflin Street address, he had found a Minnesota state identification card with Conner's name on it on a bedroom night stand less than five feet away from a loaded .380 caliber semiautomatic pistol found on a shelf in the closet. Conner was arrested and brought to the police station on the basis of the outstanding arrest warrant and “not on the basis of the gun recovered from the Laflin house.” Conner was a guest at the Bell Street location when he was arrested.
He was later Mirandized by the officer who had conducted the search at the Laflin Street home of which Conner was the legal resident. Was handcuffing Connor while he was a guest at Bell Street, and his later arrest there, lawful under the rule of Summers and Mena? Or, as a guest in the Bell Street home, should Conner be considered on a par with the tavern patrons in Ybarra?
That initial question is perhaps easiest to solve. Ybarra dealt with a public place where it would be expected that people uninvolved with criminal activity would also be present; here the search warrant was for a private home. Further, the Ybarra court condemned the patdown of the defendant which it found to be a “search” within the meaning of the Fourth Amendment. The Ybarra Court never discussed separately the legality of the detention (or “seizure” ) aspect.
When moving to suppress the evidence, Conner's primary argument was that Summers applied only to “occupants” of the premises, and that he was not an occupant of the Bell Street residence. He further argued that even if his initial detention was lawful, it became unlawful when he was handcuffed. The State argued that Summers should apply to non-occupants as well and permit the indiscriminate handcuffing of all detainees. In Summers, the Court had used the term “occupant” and “resident” interchangeably because Summers was, after all, “the” resident. Does it make a difference whether one is a home's resident or its guest?
The issue is not a frivolous one. It has been inconsistently addressed by several appellate courts in the same state. In People v. Hess, 314 Ill. App.3d 306 (4th Dist., 2000) and in People v. Elliott, 314 Ill. App. 3d 187 (2nd Dist. 2000), both appellate courts had interpreted the term “occupant” as used in Summers and Mena to apply only to residents, and not to guests. These courts relied on a passage in Professor LaFave's treatise of “Search & Seizure” (4th edition, 2004), wherein he concluded that Summers should be applied to residents only. He said, “Especially because the Court elsewhere refers to the category of persons covered as 'residents' who would ordinarily 'remain in order to observe the search of their possessions,' it would seem that the word 'occupant' is not to be loosely construed as covering anyone present, but instead is to be interpreted literally.” Vol. 2, § 4.9(e) at 726-27.
The First Appellate Court in the Conner case found the other appeals courts had not really relied on the LaFave treatise in deciding the issue, and had mentioned LaFave's quoted passage in dictum only. In Hess, the court held that the police had the authority to detain Hess, who was a non-resident, but they didn't have authority to continue to detain him past a certain point in time. In Elliott, the court's holding was based essentially on the legality of a custodial interrogation in a situation where the arrest had been without probable cause.
Cases in other jurisdictions had upheld the detention of non-residents, going beyond the debate about of the correct definition of “occupant” in Summers and looking, instead, at the analysis and reasoning used by the Summers Court in allowing the detention of non-residents who are present during the execution of a valid search warrant.
Conducting that type of analysis, the First District Appellate Court in Conner found that the detention of Conner, a non-resident of the home searched, during the execution of a search warrant for narcotics, was reasonable under the Fourth Amendment. It concluded that there was probable cause for the issuance of the search warrant of the Bell Street home. The intrusion on Conner's privacy, “while not trivial,” was still substantially less intrusive than an arrest. Conner was merely being detained by police to control the premises before executing the warrant; they did not unduly prolong the detention nor did they exploit it. Conner was not searched, nor was he detained at gunpoint. He was also being detained in a private home (albeit not his own) rather than at a police station.
Contrasting the governmental interests that might justify the detention, the court stressed that the search warrant for narcotics, issued upon probable cause, meant police knew “someone in the home” was committing a crime. Conner was present there, and upon entering police did not know whether he was there because he resided in the home or because he was participating in a crime: “His presence indicated that he voluntarily connected himself to this house and its occupants and that he was not merely an innocent bystander.”
Strangely, after chiding the Hess and Elliott courts for relying on the dictum in LaFave's treatise which suggests that the word “occupant” does not include “guest” or “visitor” but only permitted the detention of “residents” of the premises, the First Appellate District court then did the same thing - relying on dictum from the Muehler v. Mena case. In that case Justice Stevens, joined by three other justices, had stated in his concurring opinion that “Summers authorizes the detention of any individual who is present when a valid search warrant is being executed.” [Emphasis supplied.] Recognizing that the concurrence is not binding precedent, the court in the case at bar found it to be meaningful that the Supreme Court in Summers appeared to include not only residents but also all other individuals present on the premises during the execution of a search warrant. That conclusion is perhaps justified because Justice Stevens was also the author of the Summers' majority opinion.
While the foregoing discussions technically only justify the detention of non-residents, the Conner court had little difficulty in further holding that the use of handcuffs on non-residents was equally reasonable. The handcuffing was for the safety of the officers. Muehler v. Mena had recognized that inherent in the Summers' authorization to detain the occupant of the place to be searched is the authority to use reasonable force in effectuating the detention. Mena had held specifically that the need to detain multiple occupants made the use of handcuffs all the more reasonable. And that was exactly what the Chicago police officer faced during the Bell Street search. He detained three individuals and handcuffed all three for the safety of the police officers and to insure that the individuals did not interfere with the search of the premises.
The final contention of Conners, that the officer's conduct in running a computer warrant check impermissibly changed and prolonged the encounter from a protective detention into an investigation of past crimes, was also rejected. The court therefore affirmed the judgment of conviction entered by the Cook County circuit court.
