No IN THE SUPREME COURT OF THE UNITED STATES. CHUNON L. BAILEY, A/K/A POLO, Petitioner,

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES CHUNON L. BAILEY, A/K/A POLO, Petitioner, v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION OF FEDERAL DEFENDERS IN SUPPORT OF PETITIONER Sarah Gannett Co-Chair, Amicus Committee NATIONAL ASSOCIATION OF FEDERAL DEFENDERS 601 Walnut St., Ste. 540W Philadelphia, PA (215) Michael Y. Scudder Counsel of Record Emily A. Reitmeier SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 155 North Wacker Dr. Chicago, IL (312) skadden.com COUNSEL FOR AMICUS CURIAE NATIONAL ASSOCIATION OF FEDERAL DEFENDERS

2 i TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF THE AMICUS...1 BACKGROUND...2 SUMMARY OF ARGUMENT...4 ARGUMENT...5 I. Categorical Rules Are The Rare Exception Under The Fourth Amendment....5 II. III. Empirical Evidence Demonstrates No Systematic Or Regular Threat To Officer Safety From Individuals Who Have Left A Premises To Be Searched...8 Neither State Lawmakers Nor Law Enforcement Policymakers Have Sought To Exercise A Categorical Authority To Detain Recent Occupants A. State Laws Codifying Officers Detention Authority Do Not Extend To Recent Occupants...15 B. Police Manuals Direct Officers To Detain Only Persons At Or In The Immediate Vicinity Of The Premises...16 CONCLUSION...20 i

3 ii Cases TABLE OF AUTHORITIES Arizona v. Gant, 556 U.S. 332 (2009)...5, 6, 8 Begay v. United States, 553 U.S. 137 (2008)...11 Chimel v. California, 395 U.S. 752 (1969)...5 Dawson v. City of Seattle, 435 F.3d 1054 (9th Cir. 2006)...7 Denver Justice & Peace Committee v. City of Golden, 405 F.3d 923 (10th Cir. 2005)...7 Dunaway v. New York, 442 U.S. 200 (1979)...5 Fowler v. United States, 131 S. Ct (2011)...11 Heitschmidt v. City of Houston, 161 F.3d 834 (5th Cir. 1998)...7 J.D.B. v. North Carolina, 131 S. Ct (2011)...11 Katz v. United States, 389 U.S. 347 (1967)...5 Knowles v. Iowa, 525 U.S. 113 (1998)...8 ii

4 iii Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001)...7 Maryland v. Wilson, 519 U.S. 408 (1997)...10 McDonald v. City of Chicago, 130 S. Ct (2010)...10 Michigan v. Bryant, 131 S. Ct (2011)...11 Michigan v. Summers, 452 U.S. 692 (1981)... passim New York v. Belton, 453 U.S. 454 (1981)...5 Terry v. Ohio, 392 U.S. 1 (1968)...11 Thornton v. United States, 541 U.S. 615 (2004)...10 United States v. Bailey, 652 F.3d 197 (2d Cir. 2011)...2, 3 United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011)...9 United States v. Castro-Portillo, 211 F. App x 715 (10th Cir. 2007)...9 United States v. Cavazos, 288 F.3d 706 (5th Cir. 2002)...9 United States v. Cochran, 939 F.2d 337 (6th Cir. 1991)...9 iii

5 iv United States v. Montieth, 662 F.3d 660 (4th Cir. 2011)...9 United States v. Robinson, 414 U.S. 218 (1973)...5 United States v. Sears, 139 F. App x 162 (11th Cir. 2005)...9 Unus v. Kane, 565 F.3d 103 (4th Cir. 2009)...7 Constitution and Statutes U.S. Const. Amend. IV... passim Georgia Code Ann ILCS 5/ Iowa Code Kansas Stat. Ann Montana Code Ann (2)...15 Nevada Revised Stat (3)...15 N.Y. Crim. Proc. Law (McKinney)...15 Wisconsin Stat iv

6 v Miscellaneous Boston, Massachusetts Police Department, Search Warrant Execution Procedures, CityofBoston.gov, available at 18 Chandler, Arizona Police Department, General Orders, D-34 Search Warrants, Subject 200 Executing Search Warrants, chandlerpd.com, available at Chicago, Illinois Police Department, Chicago Police Department Directives Special Order S05-05(V), directives.chicagopolice.org, available at Cincinnati, Ohio Police Department, Search Warrants/Consent to Search, C(6)(i); D(2), cincinnati-oh.gov, available at Federal Bureau of Investigation, A Word about UCR Data, FBI.gov, available at Federal Bureau of Investigation, About LEOKA 2010, FBI.gov, available at v

7 vi Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2006, Summaries of Officers Feloniously Killed, FBI.gov, available at Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2007, Summaries of Officers Feloniously Killed, FBI.gov, available at 12 Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2008, Summaries of Officers Feloniously Killed, FBI.gov, available at 13 Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2009, Summaries of Officers Feloniously Killed, FBI.gov, available at Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, FBI.gov, available at Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Methodology, FBI.gov, available at vi

8 vii Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Summaries of Officers Feloniously Killed, FBI.gov, available at 12 Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Table 19 FBI.gov, available at Federal Bureau of Investigation, LEOKA Reporting Form, FBI.gov, available at Iowa City, Iowa Police Department, General Order on Search and Seizure, icgov.org, available at Kansas City, Missouri Police Department, State Search Warrant Procedures, No , kcmo.org, available at Kenosha, Wisconsin Police Department, Search of a premises with and without a warrant, Section IV.A.4(c), kenoshapolice.com, available at Lake City, Florida Police Department, Searches, General Orders Manual, lcfla.com, available at vii

9 viii Los Angeles, California Police Department, Department Manual 4/742.20, lapdonline.org, available at Mark V. Lonsdale, Raids: A Tactical Guide to High Risk Warrant Service (1991)...19 Minneapolis, Minnesota Police Department, Policy & Procedure Manual 9-303, minneapolismn.gov, available at Peter B. Kraska & Louis J. Cubellis, Militarizing Mayberry and Beyond: Making Sense of American Paramilitary Policing, 14 JUST. Q. 607 (1997)...19 Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS., no. 1 (1997)...19 Pine Bluff, Arkansas Police Department, Policies and Procedures Manual, Executing a Search Warrant, pbpd.org, available at Scottsdale, Arizona Police Department, Field Orders; Arrest and Search, ScottsdaleAZ.gov, available at Wayne R. LaFave, 3 Search and Seizure (4th ed. 2004)...6 viii

10 1 INTEREST OF THE AMICUS 1 The National Association of Federal Defenders ( NAFD ) was formed in 1995 to enhance the representation provided to indigent criminal defendants under the Criminal Justice Act, 18 U.S.C. 3006A, and the Sixth Amendment to the Constitution. The NAFD is a nationwide, non-profit, volunteer organization. Its membership is comprised of attorneys who work for federal public and community defender organizations authorized under the Criminal Justice Act. Among the NAFD s guiding principles is its commitment to promote fair adjudication in criminal matters by appearing as amicus curiae in cases of significant and recurring importance to indigent defendants. The question presented here implicates important liberty interests protected by the Fourth Amendment and recurs with significant frequency in the daily administration of criminal law and related prosecutions. The NAFD accordingly has a strong interest in the matter and submits this amicus brief in support of petitioner Chunon L. Bailey. The NAFD respectfully urges the Court to reverse the Second Circuit s decision and to hold that the Fourth 1 A letter from the Solicitor General consenting to the filing of this brief is being filed with the Clerk of the Court, pursuant to Rule 37.3(a). Petitioner filed a blanket consent to amicus briefs. No counsel for a party authored this brief in whole or in part and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, its members, or its counsel made a monetary contribution to the preparation or submission of this brief.

11 2 Amendment prohibits police from detaining, incident to the execution of a search warrant for contraband, occupants who have left the immediate vicinity of the premises to be searched. BACKGROUND On July 28, 2005, local police on Long Island, New York, obtained a warrant to search an apartment for a.380-caliber handgun. United States v. Bailey, 652 F.3d 197, 200 (2d Cir. 2011). In conducting surveillance of the location before executing the warrant, two officers observed petitioner and another individual leave the gate that led to the apartment and drive away. Id. The record contains no evidence showing that the police had reason to believe petitioner knew of their presence or the planned search. Brief of Petitioner Chunon L. Bailey ( Pet. Br. ) at 4. The police nonetheless followed petitioner, pulled him over, and questioned him. Bailey, 652 F.3d at When the police asked the petitioner where he was coming from, the petitioner said he was coming from his house at 103 Lake Drive. Id. at 201. The detention, the police told petitioner, was not an arrest, but rather a measure taken incident to the search of the apartment a mile away. Id. A pat-down search following the car stop led police to discover a key to the apartment in petitioner s pocket. Id. After being informed of the search, in response to questions put to him during the detention, petitioner stated: Anything you find there [in the apartment] ain t mine, and I m not cooperating with your investigation. Id. The ensuing search of the apartment by a different team of officers turned up narcotics and

12 3 firearms, which led to petitioner s indictment for federal criminal offenses. Id. Lacking direct evidence linking petitioner to the contraband, the government sought to connect petitioner to those items by introducing the key recovered from him during the stop, as well as petitioner s statements. Petitioner moved to suppress this evidence as the fruit of an unlawful seizure under the Fourth Amendment. The district court denied the motion, and a jury trial ended with guilty verdicts on all counts. Id. Petitioner was thereafter sentenced to 30 years imprisonment. Id. The key issue on appeal was whether petitioner s detention violated the Fourth Amendment. The Second Circuit held it did not, reading Michigan v. Summers, 452 U.S. 692 (1981), to authorize[ ] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable. Bailey, 652 F.3d at 208 (emphasis in original). [T]he interests of law enforcement in the safety of the officers and the preservation of evidence, the Second Circuit reasoned, justified application of the Summers rule to instances where an individual has left the immediate vicinity of the place to be searched. Id. at 205. The court also underscored what it perceived as the de minimis intrusion on petitioner s liberty resulting from the car stop. Id.

13 4 SUMMARY OF ARGUMENT By its terms, the Fourth Amendment requires individual case-by-case determinations of whether a challenged search or seizure was unreasonable. The U.S. Reports are replete with instances of the Court s insistence on precisely this approach. Bright-line rules authorizing searches or seizures independent of any individualized determination based on the totality of circumstances are the rare exception. No new blanket authority should be approved here, as the government cannot justify an expansion of the rule announced in Summers to cover individuals who have left the home to be searched, and who may present no safety risk whatsoever to law enforcement. A review of the available empirical data contains no indication that individuals who have left premises to be searched for contraband return with any regularity to threaten officer safety. Moreover, neither state lawmakers nor law enforcement officials have seen fit in the three decades since Summers to systematically codify or formalize any detention authority or policies vis-à-vis persons who have recently left the premises to be searched. This case presents the Court with the opportunity to underscore the precept that categorical Fourth Amendment rules are generally to be avoided, and can only be appropriate when justified by demonstrable need. Accordingly, the NAFD supports the position of the petitioner and urges the Court to hold that Summers should not be extended to encompass the detention of persons known to have recently occupied a residence where a search warrant for contraband is to be executed.

14 5 ARGUMENT I. CATEGORICAL RULES ARE THE RARE EXCEPTION UNDER THE FOURTH AMENDMENT. No principle is more entrenched under the Fourth Amendment than this Court s repeated admonition that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also Dunaway v. New York, 442 U.S. 200, 213 (1979). Exceptions to the warrant requirement are limited, and bright-line rules that operate without individualized determinations thereby eliminating the case-by-case reasonableness inquiries at the heart of Fourth Amendment doctrine are rare. On those few occasions resulting in the adoption of a bright-line rule, the Court has engaged in a balancing of competing interests and determined that a particularly strong government interest outweighed the intrusion upon the individual s interest in freedom from a particularly defined type of intrusion under the Fourth Amendment. See, e.g., New York v. Belton, 453 U.S. 454, 460 (1981) (authorizing search of an automobile s passenger compartment upon a custodial arrest); United States v. Robinson, 414 U.S. 218, (1973) (authorizing search of an individual incident to arrest); Chimel v. California, 395 U.S. 752, 763 (1969) (authorizing a

15 6 warrantless search of the arrestee s person and the area within his immediate control ). These decisions make plain the definitional challenges inherent in formulating categorical rules: The Court must articulate the scope of a rule s application with sufficient precision to provide the intended bright-line guidance and to produce results approximating those which would be obtained if accurate case-by-case application of the underlying principle were possible. Wayne R. LaFave, 3 Search and Seizure: A Treatise on the Fourth Amendment 7.1 (4 th ed. 2004). So, too, is it necessary for the Court to ensure[ ] that the scope [of the categorical rule] is commensurate with its purposes. Gant, 556 U.S. at 339. Ample illustration of these points appears in the Court s rationale for adopting the categorical rule that is front and center here. In Michigan v. Summers, 452 U.S. 692 (1981), the Court approved the routine detention of residents of a house while it was being searched for contraband pursuant to a valid warrant. Id. at 705 n.21. The Court explained that such detention would reduce the risk of harm to the officers conducting the search, preclude suspects flight in the event incriminating evidence is discovered, permit residents to facilitate an orderly search, and prevent efforts to conceal or destroy evidence. Id. at On the other side of the balance, the Court concluded that the degree of intrusion upon detainees individual interests is minimal when the detention is in their own residence and the warrant is for contraband. Id. at The residential character of the premises permitted the Court to

16 7 safely assume that most citizens unless they intend flight to avoid arrest would elect to remain in order to observe the search of their possessions. Id. at 701. In addition, because the detention is in the person s own residence, it could add only minimally to the public stigma associated with the search itself. Id. at 702. Meanwhile, the warrant s identification of contraband was significant because it meant that a judicial officer had already determined that police have probable cause to believe that someone in the home is committing a crime, so that a suspicion of criminal activity justifies a detention of [the occupants]. Id. at By emphasizing these limitations, the Court ensured that the government interests furthered by a bright-line rule would consistently outweigh what in context was only an incremental intrusion on personal liberty. Id. at 703. In seeking an expansion of the Summers rule, the government thus bears a 2 Summers reserved the question of whether the detention authority it approved may be exercised when a warrant merely authorize[s] a search for evidence, as distinct from contraband. 452 U.S. at 705 n.20. The circuits have split on this question. The better view recognizes the distinction to be crucial, as the existence of mere evidence on the premises does not suggest that a crime is being committed, and therefore the Summers rationale justifying detention based on the occupant s connection to the premises is not applicable. Leveto v. Lapina, 258 F.3d 156, 172 (3d Cir. 2001) (Alito, J.) (citation and internal quotation marks omitted). Accord Denver Justice & Peace Comm. v. City of Golden, 405 F.3d 923, 931 (10th Cir. 2005); Heitschmidt v. City of Houston, 161 F.3d 834, 838 (5th Cir. 1998); contra Unus v. Kane, 565 F.3d 103, (4th Cir. 2009); Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006).

17 8 significant burden. At the very least, to support the adoption of a broader bright-line rule, it needs to demonstrate that: the interest in officer safety is supported by a cognizable threat from residents who have recently left the home to be searched; this threat is implicated in most cases; and on balance, the Fourth Amendment intrusion resulting from the detention of recent occupants away from their home is justified by the strength of the government s interest. The weight of the government s burden is clear from prior cases. In Arizona v. Gant, for example, the government sought a rule allowing searches of a vehicle incident to arrest where the individual arrested had been secured by police and had lost access to the vehicle. 556 U.S. at The Court declined the invitation, holding that the government failed to show that, in this circumstance, permitting a search of the car sufficiently furthered interests in officer safety and evidence preservation to warrant extension of the rule of Belton. Id. at 346; see also Knowles v. Iowa, 525 U.S. 113, (1998), (holding that officers may not categorically search vehicles incident to stops for traffic violations). II. EMPIRICAL EVIDENCE DEMONSTRATES NO SYSTEMATIC OR REGULAR THREAT TO OFFICER SAFETY FROM INDIVIDUALS WHO HAVE LEFT A PREMISES TO BE SEARCHED. Whether the government interests advanced here foremost officer safety justify an extension of

18 9 Summers is a question amenable to empirical analysis. The Court should therefore insist that the government demonstrate the existence of meaningful and recurring safety risks calling for a new (and disfavored) categorical rule under the Fourth Amendment. Neither the Second Circuit nor any other circuit court that has endorsed similar expansions of Summers cited any empirical studies, expert testimony, or other evidence to support their assumption that individuals who have left a premises to be searched present a recurring threat to officer safety. 3 Indeed, available empirical data supports the conclusion that there is no systemic safety risk from recent occupants that would justify the expansion of Summers s categorical rule to such persons. For nearly 40 years, the Federal Bureau of Investigation has collected and published data on police homicides, accidental deaths, and assaults. Federal Bureau of Investigation, About LEOKA 2010, FBI.gov, available at The most recent compilation of these data appears in a publication entitled Law Enforcement Officers Killed and Assaulted, available on the FBI s website. Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, 3 See, e.g., United States v. Montieth, 662 F.3d 660 (4th Cir. 2011); United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011); United States v. Castro-Portillo, 211 F. App x 715 (10th Cir. 2007); United States v. Sears, 139 F. App x 162 (11th Cir. 2005); United States v. Cavazos, 288 F.3d 706 (5th Cir. 2002); United States v. Cochran, 939 F.2d 337 (6th Cir. 1991).

19 10 FBI.gov, available at (hereinafter FBI Crime Report ). The FBI Crime Report contains data from over 18,000 participating federal, state, local, and tribal law enforcement agencies and several nonprofit organizations. Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Methodology, FBI.gov, available at Federal Bureau of Investigation, A Word about UCR Data, FBI.gov, available at The FBI s primary objective in assembling and publishing its Crime Report data is to generate a reliable set of crime statistics for use in law enforcement administration, operation, and management. Federal Bureau of Investigation, A Word about UCR Data, FBI.gov, available at 4 The Court has relied on the FBI s data on prior occasions to assess the risk certain encounters pose to officer safety. See, e.g., Maryland v. Wilson, 519 U.S. 408, 413 (1997); McDonald v. City of Chicago, 130 S. Ct. 3020, 3127 (2010) (Breyer, J., dissenting); Thornton v. United States, 541 U.S. 615, 626 (2004) (O Connor, J., concurring). 5 4 To ensure these data are uniformly reported, the FBI provides contributing law enforcement agencies with a handbook explaining how to classify and score offenses and supplies uniform crime offense definitions. Federal Bureau of Investigation, A Word about UCR Data, FBI.gov, available at See also Federal Bureau of Investigation, LEOKA Reporting Form, FBI.gov, available at 5 The Court has also relied on other FBI crime reports, not related specifically to crimes against law enforcement

20 11 One section of the FBI Crime Report includes narrative accounts summarizing the circumstances of each felonious killing of a police officer in the line of duty. See Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Summaries of Officers Feloniously Killed, FBI.gov, available at As the FBI aims to collect this information for every such homicide, the report constitutes a comprehensive set of relevant data compiled by an entity with a manifest interest in assembling the fullest information available. A review of the five most recent FBI Crime Reports did not reveal a single incident supporting the extension of Summers endorsed by the Second Circuit. 6 Indeed, these Crime Reports contain not one officers. See, e.g., Terry v. Ohio, 392 U.S. 1, 23-24, n.21 (1968) (relying on the FBI s report entitled Uniform Crime Reports for the United States ); Michigan v. Bryant, 131 S. Ct. 1143, 1172 n.5 (2011) (Scalia, J., dissenting) (discussing the FBI s report entitled, Crime in the United States ); J.D.B. v. N. Carolina, 131 S. Ct. 2394, 2417, n.11 (2011) (Alito, J., dissenting) (same); Fowler v. United States, 131 S. Ct. 2045, 2052 (2011) (same); Begay v. United States, 553 U.S. 137, 157, n.4 (2008) (Alito, J., dissenting). 6 The reports for can be found at: Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2006, Summaries of Officers Feloniously Killed, FBI.gov, available at Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2007, Summaries of Officers Feloniously Killed, FBI.gov, available at Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2008, Summaries of Officers Feloniously Killed, FBI.gov, available at Federal Bureau of Investigation, Law Enforcement Officers Killed and

21 12 reported incident in which an individual whom police observed leave the area shortly before the search returned during the warrant s execution and attacked officers. Of the 238 officer deaths from for which the FBI Crime Reports included a narrative summary, 7 thirteen involved an officer attempting to serve or execute a warrant. 8 Of those twelve, seven involved officers who were attempting to serve an arrest warrant and six involved officers who were executing a search warrant. In all but one of the six search warrant cases, the officers were killed by individuals inside the premises being searched circumstances falling squarely within the rule of Summers. 9 Assaulted 2009, Summaries of Officers Feloniously Killed, FBI.gov, available at 7 In limited instances, the Report does not include summaries due to insufficient information, gag orders, or other unusual circumstances. Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Summaries of Officers Feloniously Killed, FBI.gov, available at 8 These thirteen cases do not include homicides for which the narrative summary references a warrant only tangentially, as, for example, when an officer made a traffic stop and subsequently learned there was a warrant for the arrest of a person in the vehicle. 9 In one of the arrest warrant cases, an officer was killed while attempting to apprehend an individual who had taken flight. See Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2007, Summaries of Officers Feloniously Killed, FBI.gov, available at (reporting death of officer in San Antonio, Texas). But whether police may detain a person who

22 13 In the one remaining case, an officer was shot and killed by an individual who arrived at his residence as the police waited to execute the search warrant. See Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2008, Summaries of Officers Feloniously Killed, FBI.gov, available at (describing September 28, 2008 incident in Illinois). But this incident would also fall comfortably within the rule of Summers. Once the individual appeared at the premises, officers could detain him incident to the execution of the search warrant. The empirical analysis extends even further. Another section of the FBI Crime Report aggregates data on officers killed or injured by event category. For example, the FBI has compiled the number of officers killed or injured during traffic stops and pursuits, in arrest situations, in responding to burglaries, while engaged in investigative activities, and in other tactical situations. See Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted 2010, Table 19 FBI.gov, available at In all, the FBI has aggregated data regarding ten different event categories, yet it has found no occasion to collect data for the execution of search warrants as a discrete activity. For example, while the tactical situation category can include warrant execution, the category also includes plainly more dangerous circumstances including barricaded flees the premises upon sighting police is not the question presented. There is no indication here that petitioner was aware of a police presence at the time he left the residence. Pet. Br. at 4.

23 14 offender situations and hostage taking. Id. It is a fair inference from the omission of any search warrant execution category that this activity, as such, has not been thought in law enforcement circles to trigger any special or recurring safety concerns. While it is conceivable that the authority approved in Summers accounts for the absence of such evidence, it remains significant that the FBI has not ascertained and reported any recurring threat to officers from persons not present on the premises to be searched. In the end, the available empirical data does not support a conclusion that the execution of search warrants carries a systematic risk of harm to the police from individuals who have left the scene of the search. Thus, the government cannot satisfy its burden of justifying a new bright-line rule authorizing the detention of persons who have recently occupied a residence where officers are to execute a search warrant for contraband. III. NEITHER STATE LAWMAKERS NOR LAW ENFORCEMENT POLICYMAKERS HAVE SOUGHT TO EXERCISE A CATEGORICAL AUTHORITY TO DETAIN RECENT OCCUPANTS. The government s position fails for the additional reason that it ignores state lawmakers and law enforcement officials own readiness, over the three decades since Summers was decided, to draw a bright line between residents present at the home to be searched and residents who have left the premises.

24 15 A. State Laws Codifying Officers Detention Authority Do Not Extend To Recent Occupants. Several states have enacted laws defining whom police officers may detain incident to the execution of a search warrant. For example, New York state law authorizes a search of any person present thereat or therein. N.Y. Crim. Proc. Law (McKinney). Illinois law similarly allows a law enforcement officer executing a search warrant to search any person in the place at the time: (a) To protect himself from attack, or (b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant. 725 ILCS 5/ Other examples abound. 10 These laws are even more telling for what they do not authorize: detention of individuals not present within the searched premises or at the scene of the search. If individuals known to have recently left the premises posed a regular threat to officers, state legislators would be expected to confront this risk by authorizing police to detain recent occupants. Lawmakers have found no cause to confer any such authority. 10 See, e.g., Georgia Code Ann (authorizing officers to reasonably detain and search any person in the place at the time ); Iowa Code (same as to any person or thing in the place at the time ); Kansas Stat. Ann ( any person in the place at the time ); Montana Code Ann (2) ( any person on the premises being searched at the time of the search ); Nevada Rev. Stat (3) ( any person in the place at the time ); Wisconsin Stat ( any person on the premises at the time ).

25 16 B. Police Manuals Direct Officers To Detain Only Persons At Or In The Immediate Vicinity Of The Premises. Numerous policy and procedure manuals offer no indication that police forces have been impaired by refraining from any categorical detention practice with respect to persons who have recently left premises where a search warrant is to be executed. In fact, several such manuals address the execution of search warrants without referencing any threat to officers from persons not present at the time police commence the search. 11 Manuals which do address the category of persons not present on the premises identify ready means for securing officers safety without the need for off-site detentions. For example: The Boston Police Department instructs its entry personnel team to [c]ontain[ ] the area perimeter and target structures(s), gain[ ] control of all persons inside the target location using that amount of force as is reasonably necessary, and establish[ ] that the target 11 For example, the following police manuals discuss executing search warrants and procedures to prepare for internal threats, but do not discuss external threats: Chandler, Arizona Police Department, General Orders, D-34 Search Warrants, Subject 200 Executing Search Warrants, chandlerpd.com, available at Pine Bluff, Arkansas Police Department, Policies and Procedures Manual, Executing a Search Warrant, pbpd.org, available at Lake City, Florida Police Department, Searches, General Orders Manual, lcfla.com, available at

26 17 location is secure. Perimeter security personnel are instructed to [e]nsur[e] that no unauthorized persons escape from or enter the premises while the search is being conducted and should remain[ ] outside the premises until ordered to enter by the supervisor. Boston, Massachusetts Police Department, Search Warrant Execution Procedures, CityofBoston.gov, available at The Iowa City Police Department s manual provides that officers should conduct a Pre- Search Briefing to ensure [e]xterior containment of the premises and to restrict access at entrances. Iowa City, Iowa Police Department, General Order on Search and Seizure, icgov.org, available at The Kansas City Police Department directs its officers to maintain control of all persons present and provide security at any entrances/exits to eliminate any unauthorized persons from entering/leaving the scene. Kansas City, Missouri Police Department, State Search Warrant Procedures, No , kcmo.org, available at For additional police manuals discussing external threats, see Kenosha, Wisconsin Police Department, Search of a premises with and without a warrant, Section IV.A.4(c), kenoshapolice.com, available at (mentioning the use of Exterior security ); Scottsdale, Arizona Police Department, Field Orders; Arrest and Search, ScottsdaleAZ.gov, available at ( People showing up at the warrant location once entry has

27 18 Furthermore, police departments can (and do) employ specialized SWAT teams to execute high-risk warrants. 13 These teams utilize specialized training been made may be frisked for weapons, if there is a reasonable suspicion they are armed. They cannot be searched for contraband unless independent probable cause is developed. ); Cincinnati, Ohio Police Department, Search Warrants/Consent to Search, C(6)(i); D(2), cincinnati-oh.gov, available at (instructing the supervising officer to create a checklist including the number of officers needed to secure the inside and the outside of the premises, and instructing the officers to secure the perimeter before beginning the search). 13 Some police departments specify in their rules and procedures when a SWAT team should be used: Boston, Massachusetts Police Department, Search Warrant Execution Procedures, CityofBoston.gov, available at (mandating that [t]he Boston Police SWAT Team should be utilized... whenever:... The presence of firearms is reasonably suspected ); Chicago, Illinois Police Department, Chicago Police Department Special Weapons and Tactics (SWAT) Incidents Special Order S05-05(V), directives.chicagopolice.org, available at (requiring police to consult with SWAT team supervisors before executing a warrant if, among other things, the suspect has a violent criminal history, a large number of suspects may be present at the location, or a no knock warrant has been issued); Los Angeles, California Police Department, Department Manual 4/742.20, lapdonline.org, available at (calling for the use of high-risk warrant procedures, which include the use of a SWAT team, for service of warrants involving a suspect possessing exceptional weaponry or who has a documented violent history, or in other situations that may require specialized personnel ); Minneapolis, Minnesota Police Department, Policy & Procedure Manual 9-303, minneapolismn.gov, available at (requiring the use of a SWAT team in all... situations where a preplanned entry in to a building or dwelling is necessary to arrest a suspect(s) who is believed to be armed and/or

28 19 and procedures to address safety risks arising during high-risk searches. See Mark V. Lonsdale, Raids: A Tactical Guide to High Risk Warrant Service 1, 76 (1991) (providing a guide to high risk warrant service, advanced tactical shooting and the related training requirements and instructing law enforcement to ensure the security and safety of the raid team by securing the perimeter). * * * * * In sum, no meaningful evidence supports the expansion of the rule of Summers to the circumstances here. The Court should refrain from adopting a new categorical rule which undeniably would infringe upon the interests in privacy and personal security protected by the Fourth Amendment and instead should adhere to a caseby-case analysis of the safety risk, if any, posed by individuals who have left the premises to be searched. When special threats to safety arise under particular circumstances, all indications from dangerous or when entry to the location may be hazardous or impeded because of warning systems, reinforced doors, or other impediments ). Other sources confirm the increased use of SWAT teams. See generally Peter B. Kraska & Louis J. Cubellis, Militarizing Mayberry and Beyond: Making Sense of American Paramilitary Policing, 14 JUST. Q. 607, 615 (1997) (empirical study documenting the increased use of SWAT/paramilitary teams in cities with twenty-five to fifty thousand residents to serve high-risk warrants); Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS., no. 1, at 1, 5 7 (1997) (empirical study documenting the increased use of paramilitary/swat teams in cities with fifty thousand or more residents to serve high-risk warrants).

29 20 empirical data are that the police are sufficiently trained and equipped to appropriately address them. Since a categorical rule as to persons who have recently occupied the premises to be searched would not meaningfully promote officer safety, there is no reason to extend the detention authority approved in Summers to the circumstances of this case. Instead, the default mode of Fourth Amendment analysis should apply, permitting officers to take such measures as may be justified on the basis of individualized determinations made in light of all the circumstances of a given warrant s execution. CONCLUSION For these reasons, the Court should reverse the Second Circuit and hold that the categorical rule of Summers does not apply to recent occupants of the premises subject to search.

30 21 Dated: August 10, 2012 Respectfully submitted, Sarah Gannett Co-Chair, Amicus Committee NATIONAL ASSOCIATION OF FEDERAL DEFENDERS 601 Walnut St., Ste. 540W Philadelphia, PA (215) Michael Y. Scudder Counsel of Record Emily A. Reitmeier SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 155 North Wacker Dr. Chicago, IL (312) skadden.com COUNSEL FOR AMICUS CURIAE NATIONAL ASSOCIATION OF FEDERAL DEFENDERS