Search Warrant Execution: When Does Detention Rise to Custody? (Part 1 - Part 2)
By M. Todd Heflin, J.D.
Special Agent Heflin is a legal instructor at the FBI Academy.
The execution of a search warrant by law enforcement personnel at a private dwelling, apartment, or other residence often creates an opportunity for officers to interact with individuals associated with the premises. Given the reason for law enforcement presence—the exercise of authority derived from the search warrant, this encounter may create the need for officers to use such power over the persons they encounter.
The U.S. Supreme Court has addressed the contours of this authority in several ways, such as holding that officers could detain persons present during the execution of a valid search warrant.1 In defense of this authority, the Court stated that “[S]uch detentions are appropriate…because the character of the additional intrusion caused by detention is slight and because the justifications are substantial.”2 In some cases the exercise of this authority has carried with it the need to use restraining devices and control the movement of individuals during the execution of the warrant for, perhaps, a lengthy period of time.3 While this authority has been well established since 1981, what has surfaced more recently is concern by courts that the circumstances related to detention are akin to those associated with custody and, thus, may invoke the prophylactic protections of Miranda v. Arizona.4 This article discusses situations in which these concerns surfaced and the various factors that courts have considered in determining when the encounter falls within the protective ambit of Miranda.
Michigan v. Summers5
Detroit, Michigan, Police Department officers encountered George Summers on the steps of a residence as they prepared to execute a search warrant for narcotics. While the warrant was for the residence, police detained Summers in hopes he would assist in entering the home. Summers claimed to have left his keys inside. Another party then came to the door but refused to open it for the officers, who then forced their way into the home. The police officers then brought Summers into the residence and held him there with eight other occupants. During the course of the search, police found two bags of suspected narcotics in the basement. When the officers determined Summers owned the house, they placed him under arrest, and during a search incident to his arrest, they discovered heroin.6
|The Supreme Court made it clear that formal arrest is not the only way the protections provided by Miranda would apply….|
Agreeing with Summers, the lower courts suppressed the evidence found on his person, concluding that police discovered it during an unlawful seizure and finding that officers unreasonably detained him during the execution of the warrant. The Supreme Court disagreed, holding that the detention of occupants or recent inhabitants of a residence subject to a search warrant is a reasonable seizure within the meaning of the Fourth Amendment. The Court noted that to obtain a search warrant, a neutral and detached magistrate had found probable cause to believe a crime was committed and that evidence of the crime was located at the location to be searched.7 Logically, the link of the occupant or recent inhabitant to the premises targeted by the warrant would give rise to suspicion. Because the search warrant already was a substantial invasion of privacy, the detention of a resident or recent occupant—although intrusive—surely, was not as intrusive as the search itself. If probable cause was the required standard to obtain the search warrant, it was logical to assume that at least reasonable suspicion existed to detain the residents during the search.8
The Supreme Court further clarified the scope of the detention in Muehler v. Mena.9 While investigating a drive-by shooting, police obtained a search warrant for Mena’s residence, believing that a gang member involved in the incident resided there. During the search Mena was detained in a converted garage connected to the home while in handcuffs for almost 3 hours. Mena was not arrested at the conclusion of the search, although a gun, marijuana, and gang paraphernalia were found at the scene.
Mena sued the police officers for damages, alleging, among other things, that the length and manner of her detention—namely, the fact she was handcuffed—were unreasonable and a violation of her Fourth Amendment rights. While Mena won a money judgment in the lower court, the Supreme Court reversed the judgment, holding that Mena’s detention was reasonable in light of the Michigan v. Summers decision because it was appropriate for officers to control individuals at the scene to protect their safety and prevent the destruction of evidence.10 The Supreme Court further held that the form of Mena’s detention, specifically, being handcuffed, also was reasonable in light of the government interest in the safety of its officers conducting the search.11
Summers and the Fifth Amendment
|Officers might consider advising the subject of their Miranda rights prior to an interview, even if the subject is not formally placed under arrest.|
The degree of control exercised by law enforcement as a result of these Supreme Court pronouncements has led some courts to consider the implications of the Fifth Amendment privilege against self-incrimination with respect to statements derived from an individual during the encounter. The Fifth Amendment states, in part, that no person “shall be compelled in any criminal case to be a witness against himself.”12 This specific limitation on compelled self-incrimination was addressed in the seminal Supreme Court decision Miranda v. Arizona.13 In Miranda, the Supreme Court fashioned a prophylactic rule designed to prevent a subject in custody from being interrogated without advisement of his rights pursuant to the protections granted in the Fifth Amendment.14 The Supreme Court made it clear that formal arrest is not the only way the protections provided by Miranda would apply and that if a “suspect’s freedom of action is curtailed to a degree associated with formal arrest,” then any subsequent interrogation would be valid only if the suspect was advised of the rights in a manner consistent with Miranda.15
The proper test to find if an individual is “in custody” when not under formal arrest involves the totality of the circumstances.16 The determination of custody is based solely on whether, when viewed through an objective lens, “a reasonable man in the suspect’s position would have understood his situation” to be one of custody.17 Thus, when an official arrest has not occurred, a court will look at all circumstances surrounding the interaction between officers and a subject and determine, based on an objective analysis, whether there was a restraint on freedom of movement at a degree associated with formal arrest.18
The nature of the encounter with law enforcement in the Summers context has led to claims that statements should be suppressed when obtained from the subject during the execution of a search warrant regardless of whether a formal arrest occurred. This has been particularly apparent in cases involving crimes against children and search warrants targeting computers and other related evidence at premises.19 Many investigations of child pornography or sexual exploitation of children involving use of the Internet hone in on an offender by garnering an Internet Protocol (IP) address connected to a residence by customer or subscriber information. Similar to physical addresses, IP addresses are assigned to particular customers.20 The customers then can be tied to a billing or subscriber address. However, the anonymity of the actual computer user remains because anyone who has access to the IP address within the residence can connect to the Internet using a multitude of capable devices. This makes interviews of occupants at residences critical to investigators. While many times forensic reviews of electronic devices during the execution of a search warrant will easily identify those in the residence who have access to the devices, sometimes a quick conversation with the occupants makes the determination much easier.
Part 1 of 2
Please return to our site soon to read Part 2 of this article.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 Michigan v. Summers, 452 U.S. 692 (1981).
2 Id. at 701.
3 Muehler v. Mena, 544 U.S. 93 (2005).
4 452 U.S. 692 (1981); and 384 U.S. 436 (1966).
5 452 U.S. 692 (1981).
6 Id. at 692.
7 Id. at 701.
8 Id. at 702.
9 544 U.S. 93 (2005) (The detention in Summers dealt with a recent occupant of a residence, so the court could not directly address other governmental concerns for detention of occupants other than the suspicion of their relation to the crime for which the search warrant was issued. In Mena, the Court addresses head-on two other important governmental interests in detaining occupants, namely the safety of the officers conducting the search warrant and preventing the destruction of evidence.).
10 Id. at 98 (The Supreme Court explicitly addressed Mena’s argument that certain questions asked of her by Immigration officials during the detention violated her Fourth Amendment right against unreasonable seizure. The court noted that the questioning occurred during the execution of the search warrant and did not extend the length of time Mena was detained, thus, there was no additional seizure of Mena for Fourth Amendment purposes.).
11 See Bailey v. United States, 133 S.Ct.1031 (2013) (The Supreme Court limited detentions allowed under Michigan v. Summers to the immediate vicinity of the residence to be searched. In Bailey the police detained two individuals who left the vicinity of a residence just prior to the execution of a search warrant. The detention occurred over a mile from the residence, and the individuals were brought back to the residence after the scene was secured. The court ruled the seizures unreasonable and not within the Summers rule.).
12 U.S. Const. amend. V.
13 384 U.S. 436 (1966).
14 Id. at 444-445.
15 Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (internal citations omitted).
16 Id. at 440.
17 See Stansbury v. California, 511 U.S. 318 (1994) (The Supreme Court held that a police officer’s subjective intent to arrest an individual at the end of an interview is irrelevant in determining custody unless the officer communicates this to the subject or the individual is subjected to treatment that for all practical purposes equals formal arrest.).
18 Id. at 323-324.
19 Department of Justice COPS Program, Child Pornography on the Internet, available at http://www.cops.usdoj.gov/Publications/e04062000.pdf (accessed March 26, 2013).
20 http://whatismyipaddress.com/ (accessed April, 2013).