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Execution of a Search Warrant (II) (podcast transcript)

Tim:  Hi. This is Jenna and Tim.  We’re back, talking about executing a warrant.  Now we’ve talked about knocking and announcing.  Agents have to knock and announce their identity, authority and purpose and demand entry. “Right”

Jenna:  That’s right.

Tim:  OK, let’s assume they’ve done that.  They’ve knocked, announce their identity, their authority, and their purpose and demanded entry.  Once inside, what should the agents do?

Jenna:  It’s a tactical matter; but in executing a search warrant, they may sweep through the house and look in all the people sized places inside the residence who might interfere with the execution of the search warrant or pose a danger to the agents while they are in there.  Once the occupants of the house are under control, they should show the occupants a copy of the search warrant if possible.  They are not always going to have the warrant at the very beginning of the search, but at least by the time they are done they should have shown someone on the premises a copy of that warrant.

Tim:  I can image going inside a house to serve a search warrant and seeing several people hanging around.  Do agents have any authority to control the occupants?

Jenna:  Yes, absolutely.  It’s call the Summers doctrine, which is based on Supreme Court case called Michigan vs. Summers.    It says that a search for contraband carries with it the limited authority to detain occupant while the search is conducted.  The occupants don’t necessarily have to be inside the house, as long as they are closely connected to the premises.  In the actual Summers case, the homeowner was out on the sidewalk trying to leave the house when the police arrived and the court allowed the officers to bring that person back inside while they conducted the search of his house.  There have been other cases sighting Summers when the homeowner has been getting in the car to drive away and police are allowed to do a vehicle stop a little bit down the street and bring that person back to the premises while they conduct the search.  Now of course the agents have to use reasonable force to conduct any detention of any person they find in there.

Tim:  Ok, now who exactly are the occupants?

Jenna:  The occupants are the people connected with the premises in a significant way.  For instance, the owner or people who are residing there.

Tim:  Why should agents be able to detain occupants?  Why should they be able to keep them there?

Jenna:  Quite simply, because the courts determined that it’s reasonable.  If the agents have a warrant to search for contraband, then a judicial officer has already found probable cause to believe that a crime is being committed at the place to be searched.  So the agents executing the warrant then have reasonable suspicion the occupants of the premises are involved in that crime.  That gives them the authority to detain the occupants during their search of the home. 

There are other reasons behind the rule also that the court sighted.  Detaining the occupant in a contraband search prevents them from taking off in the event that contraband is found.  Of course if you find drugs in the place to be searched you’ve got issues of joint and constructive possession.  The officers may decide to arrest everyone on the premises.  So when they are looking for those drugs, people might try to take off. 

Also it reduces the threat to agents.  You can image a situation when occupants are allowed to just wonder off the premises.  They may just go get some of their friends and neighbors who intend to come back and give the officers a hard time or present a threat to the agents. 

And finally, it allows for a orderly completion of the search.  If a container is locked, the occupants might be willing to unlock it rather than the agents having to smash it or break it to get in there.

Tim:  Here’s a good question.  What about people who are not occupants? I can also imagine walking into a drug distributor’s house to search - you serve a warrant for drugs and find maybe a suspected buyer, there.  Can I detain him?

Jenna:  Yes, with the facts you gave me.  If the warrant provides agents with PC to believe a crime is being committed at the place searched, the agents will probably be able to articulate a justification for conducting a Terry Stop on the non-occupants they find hiding around inside. 

Now remember, a Terry Stop requires reasonable suspicion that a subject is engaged in criminal activity. So if agents had RS that a non-occupant they find inside is involved in criminal activity - here we are talking about drug possession - the agents can use reasonable force to detain that person while they do things like, ask questions, try to get ID, and try to determine how that person is connected with the residence or involved with that crime.  And agents will throughout the course of that Terry Stop either develop PC for an arrest, or they will have to release that person after a reasonable period of time.   And what’s reasonable of course is going to depend on the facts and circumstances of each individual case.

Tim:  You said the Summers doctrine applies to contraband searches of a residence?

Jenna:  Yes.  Contraband - by that I mean stuff that is illegal to posses like drugs or like certain kinds of guns or other weapons.  Some circuits restrict the Summers doctrine to searches for contraband in a home.  That’s why we have been primarily taking about drugs warrants.

Others circuits say that agents can detain occupants no matter what they’re searching for.  So this is one of those other incidents where agents and officers are going to want to check with their AUSA.

Tim:  Assume I’ve got a warrant.  I’ve knocked and announced and I’m ready to execute. Where can agents search?

Jenna:  Well they need to think about where – in general - the warrant authorizes them to search and where - in particular - there is PC to believe the evidence described in the warrant is going to be found.

Tim:  Lets assume the warrant authorizes a search of 123 Main Street, in Brunswick. 

Jenna:  Alright

Tim:  Obviously, I can search at the house; correct?

Jenna:  Yes.

Tim:  What about outbuildings?

Jenna:  Yes.  A search warrant for a residence is going to include all the other buildings or objects within the curtilage.  We talked about curtilage -  that area directly surrounding a residence.   It’s going to include all the building or objects within the curtilage even if not specifically mentioned in that warrant.

Tim:  Where in particular can I search?

Jenna:  It depends entirely on what you’re looking for.  You can look in places where the evidence listed in the warrant might reasonably be.  In simpler terms, if you’re looking for an elephant in the house, the agents shouldn’t be looking in the icebox.  It’s doesn’t make sense.  It’s not reasonable to believe you’d find one in there.

If agents are searching for things like drugs or documents, they can properly look pretty much anywhere on the premises.  But, if they’re looking for a stolen grand piano or a big screen TV, agent will be limited in where they can look.  You wouldn’t open up a dresser drawer to look for a TV set

Tim:  So we can looking in containers where the evidence might reasonably be located; correct?

Jenna:  Yes

Tim:  Does it matter who the container belongs to?  Suppose the container belongs to a visitor.

Jenna:  Think about your PC.  In most jurisdictions, the stronger the relationship between the visitor and the premises, the more PC agents are going to have to believe the evidence they are looking for might be located in that person’s container. 

If the container belongs to a person who spends a lot of time at the premises, the agents are probably going to be justified in searching it.  But if it belongs to someone who’s just stopping by, the Avon Lady, the Pizza delivery guy, someone who has just stopped by there for 10 to 20 minutes, it’s probably unreasonable to think the items listed in the warrant would even be in there.

But be careful.  Some jurisdictions hold if the container is on a person, like a purse on a woman’s shoulder or a jacket a person is wearing, it is part of the person not the premises.  That means the agents can’t search it unless they have a warrant to search the person who is holding it.  That’s another instance where agents are going to want to check with their AUSA about the practice in their jurisdictions.

Tim:  I want to talk to you a little bit more specifically about persons, but before I go there, let me just ask you one more question about cars.  Cars of course are containers, right?

Jenna:  Yes; just think of cars as another container on the premises.  First you have got to find out if the car is on the place that’s authorized to be search.  Is it on the curtilage; second is there PC to believe the evidence might be located in the car?  Again if you are looking for a stolen grand piano, it is not going to be in a Volkswagen bug.   So if it is on the curtilage and there’s PC to believe the evidence could be located in there, it’s going to get the agents in there in most jurisdictions. 

Again, though, a word of caution.  There are some conservative circuits that say the agents have to connect the vehicle to a premises owner somehow, before they can search it pursuant to the warrant.  So depending on where the agent is operating, it may be important to figure out whose vehicle it is or who has control of it.

Tim:  Now, here’s that question about people.  Can I automatically search a person based on a premises search warrant?

Jenna:  No, absolutely not.  A search warrant for a place does not automatically mean agents can search a person in that place.  People have a very high reasonable expectation of privacy in their person.  So if an agent wants to search a person on the premises, that person should be named in the warrant. 

However, there are other ways agents might end up searching a person that they find on the premises.  For instance they might find contraband while executing the warrant and decide to arrest some or all of the people there.  Anyone placed under arrest is subject to a search incident to an arrest.

Tim:  That makes sense.  OK let’s finish up, what should agents do when they are finish searching?

Jenna:  Well they need to secure the premises.  By that I mean if they had to force entry from the door or window, they should try to secure that entry way the best they can, even if it means boarding it up.  Agents need to leave a copy of the warrant and inventory of everything they took from that premises.  They need to give it to the premises owner or if that person is not there or placed under arrest or taken away, they need to leave a copy of the warrant and inventory in a conspicuous place on that premises so the owner can find it when he gets back.

Tim:  Jenna again thank you very much.

Jenna:  Than you, Sir.

Tim:  When we come back we are going to talk about exceptions to the probable cause and warrant requirements of the 4th Amendment. 

Jenna:  Yes Sir, Looking forward to it.