§ 4.2.5 Occupants
1. Detention or Search of Occupants. An officer may detain individual outside his home, preventing him from entering his home, if the officers are waiting for a search warrant to arrive. Illinois v. McArthur, 531 U.S. 326 (2001) (officers had probable cause to believe trailer contained evidence of a crime and contraband, they reasonably feared that defendant would destroy the drugs before they could appear with a warrant, officers did not search trailer, only prevented defendant from entering trailer unaccompanied, and delay was short (two hours) which was no longer than necessary; the Court also noted that the suspected offense was also “jailable” rather than “nonjailable”).
The defendant was charged in first-degree murder of female victim. The police had a warrant for the defendant’s arrest and went to his home. His girlfriend allowed the officers to enter the apartment and gave a statement. When she declined to consent to search, one officer went to get a search warrant, and the other one remained inside. The girlfriend asked that officer to leave, but he was concerned she might destroy evidence. The defendant argued that when the officer refused to leave, “a seizure in violation of the Fourth Amendment began.” The court found that the fact that the officer waited inside the apartment until a warrant was obtained did not make the search unreasonable. He did not remain there to make a warrantless arrest or to conduct a search, but rather, to prevent the girlfriend from destroying evidence while other officers obtained a warrant. State v. Gay, 214 Ariz. 214, 150 P.3d 787 (App. 2007) (Div. 2), citing Illinois v. McArthur, 531 U.S. 326 (2001) (officer could detain occupant outside home pending arrival of search warrant).
During the execution of the warrant, the occupant of a residence being searched pursuant to a warrant can be detained for the duration of the search. Michigan v. Summers, 452 U.S. 692 (1981). In Bailey v. United States, 133 S. Ct. 1031 (2013), the Supreme Court clarified the rule of Michigan v. Summers and held that officers could not detain the defendant “incident” to execution of the search warrant in this particular case, because he was not within the immediate vicinity of the search premises. The defendant and another man left the apartment before the officers arrived to execute the warrant and were stopped about a mile away. The defendant admitted he lived at the apartment, but then denied it when informed of the search warrant. After drugs and a gun were discovered in the house, the defendant was arrested. The Court noted that there are three reasons justifying the seizure of a person incident to a search under Summers: officer safety, facilitating the completion of the search, and preventing flight. None of those reasons has the same impact when the occupant of the home is beyond the immediate vicinity of the premises to be searched. However, the Court stated that if the occupant had returned, he could have been detained under Summers.
Detaining an occupant of a suspected gang safe house for two to three hours while officers searched the premises for concealed weapons was lawful. Muehler v. Mena, 544 U.S. 93 (2005) (officers were investigating a gang-related drive-by shooting and suspected that at least one gang member lived at residence; warrant was executed at 7:00 a.m., and officers handcuffed defendant and took her and three others to a garage while search ensued; questioning of occupant about her immigration status during detention did not violate the Fourth Amendment).
While executing a search warrant, the defendant walked up to the house and was properly detained; officers did not...
