In another opinion, Bailey v. United States, handed down by the Supreme Court this week the Court held that police may not detain someone incident to the search of a residence when that person is a mile away. The traditional rule has been that police may seize anyone incident to the search of a home who is in the home or near the home. The rule came from the 1981 case of Michigan v. Summers which held that police were justified in seizing an individual who was walking down the front stairs of a home that was being searched. The Bailey case the Supreme Court just decided involved an individual who was seized by police a mile away from the apartment that was being searched. Police suspected that the individual was from the apartment that was being searched and seized him while the search was being performed.
The Summers opinion gave three reasons why police may seize someone incident to a search which was officer safety, facilitating the completion of the search, and preventing flight. In the instant case the Court held that those justifications don’t hold the same force if the subject is not in the immediate vicinity of the home being searched. The Court did not say the detention was completely unlawful because if the prosecution can prove there was reasonable suspicion for the seizure it would still be justified. This seizure cannot be justified on the grounds that it was incident to a search warrant.
In short, what this means is that police may seize someone incident to a lawful search of a residence if that person is either in the residence being searched or within the immediate vicinity of the area being searched. What exactly the “immediate vicinity” is may be the source of more dispute later, but for now we know it does include someone who is on the front stairs of a home but it would not include someone one mile away. In order to be successful in justifying the detention it is more likely police will have to show that the individual being detained was in an area either attached to the home or in a very close proximity to the home.
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