Question Presented (from cert petition):
Whether, pursuant to Michigan v. Summers, 452 U.S. 692 (1981), 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.
Lower court decision (652 F.3d 197 2nd Cir 2011)
Police getting ready to execute a search warrant saw Bailey leave the residence, get in a car and drive away. They stopped and eventually arrested him, with the search-incident turning up incriminating evidence. Did the search warrant justify his initial detention, hence the eventual arrest? Summers says that, under authority of a search warrant, you can detain someone without individualized suspicion as they’re leaving the house. As the court of appeals has succinctly noted, State v. Goetz, 2001 WI App 294, ¶ 12, 249 Wis.2d 380, 638 N.W.2d 386 (2001), “In Michigan v. Summers, 452 U.S. 692, 698 (1981), the Supreme Court held that detentions during the execution of a search warrant implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. These types of detentions are ‘substantially less intrusive’ than an arrest.” Id. at 702 (citation omitted).” The 2nd Circuit extended this principle in this case:
We are now asked to decide whether the same authority pursuant to which police officers may detain an occupant at the premises during the execution of a search warrant permits them to detain an occupant who leaves the premises during or immediately before the execution of a search warrant and is detained a few blocks away.
We agree with the District Court that the Fifth, Sixth and Seventh Circuits have the better of this argument. The guiding principle behind the requirement of reasonableness for detention in such circumstances is the de minimis intrusion characterized by a brief detention in order to protect the interests of law enforcement in the safety of the officers and the preservation of evidence. See Summers, 452 U.S. at 701, 101 S.Ct. 2587. …
The reference to the 7th Circuit case is United States v. Bullock, 632 F.3d 1004 (7th Cir.2011), which similar to Bailey, allowed a stop of a car 10-15 blocks from, and transport of the occupants back to, the house after notifying the driver that a search was underway. The rationale was that an occupant becomes a flight risk and a potential risk to the officer safety in executing the warrant, once made aware of the warrant.
The question, perhaps, is whether there is a bright-line rule prohibiting extension of suspicionless Summers-detentions performed outside the immediate vicinity of the target residence. (See footnote 4 of cert petition: “lower courts on both sides of the conflict presented here have explained that situations in which a detention occurs within the immediate vicinity of the premises are analytically distinct from situations in which it occurs farther away.”)