Opinion
CRIMINAL NO. 02-10240-GAO
April 26, 2004
ORDER DENYING MOTION TO SUPPRESS
The defendant moved to suppress the fruits of a search of his home, conducted pursuant to a warrant issued by a state magistrate, and of a search of his person, conducted by the officers who were executing the warrant. The defendant's objection to the search of the home was that the affidavit in support of the warrant did not supply probable cause sufficient to justify the issuance of the warrant. At the hearing held on the motion, I denied in open court so much of the motion as presented that ground. The reasons were briefly stated on the record.
I then took evidence concerning the search of the person of the defendant. From the evidence, I make the following brief findings of fact, which are sufficient to resolve the issue presented:
As the police arrived at the defendant's residence to execute the warrant for those premises at about 8:00 p.m. on January 31, 2002, the defendant emerged from the building, accompanied by either one or two dogs. An observer might have inferred that he was taking the dog(s) for a walk. One of the police teams stationed around the house approached the defendant, stopped him, and told him that the police had a warrant to search his apartment and were about to do so. The place of the encounter was a school yard adjacent to the yard of the defendant's house. The defendant was perhaps 30 yards from the back of his house, measured in a direct line, though because of a fence between his yard and the school property he had to travel perhaps twice that distance (around the fence) to get to that position. Having stopped the defendant, the police conducted a "pat-frisk" of his person, which yielded both a handgun and some crack cocaine. The defendant was then arrested.
The defendant challenges the lawfulness of his initial detention. He concedes that if the detention was lawful, the pat-frisk that discovered the gun and drugs was legitimate.
I conclude that the detention was lawful under the doctrine of Michigan v. Summers, 452 U.S. 692 (1981). In that case, the Supreme Court held:
If the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.Id. at 704-05. Here, the officers were executing a valid warrant and were thus authorized to detain the defendant at the premises during the search.
The defendant argues that he had proceeded far enough away from the home to be outside the zone of Summers authority. It is true that in Summers the defendant was detained as he was "descending the front steps" of his home. Id. at 693. His proximity to the home, or the area of search, did not guide the Court's analysis of the issues, however, and the Court imposed no limitation on its fundamental holding by reference to spatial distance. It may well be that a person could be far enough away from the home so that he could not fairly be considered to be "present," but such a question does not arise on the facts of this case. In walking the dog(s) into the adjacent yard, the defendant was sufficiently "at" the home to justify resolving the case by reference to the Summers rule. See also United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991) (declining to find any requirement of "geographic proximity" in the Summers rule).
The detention was lawful, as was the pat-frisk that followed. The motion to suppress is DENIED.