ND: Even a frequent visitor isn’t sufficiently connected to a probationer’s property to be subject to his probation search waiver

A mere visitor, albeit a frequent one, is not subject to search as an occupant of the premises under a probation search waiver. He has an insufficient connection to the property to be subject to the occupant’s waiver. State v. Kaul, 2017 ND 56, 2017 N.D. LEXIS 56 (March 13, 2017):

[*P11] Professor LaFave notes, “[e]specially because the Court elsewhere refers to the category of persons covered as ‘residents’ who would ordinarily ‘remain in order to observe the search of their possessions,’ it would seem that the word ‘occupants’ is not to be loosely construed as covering anyone present, but instead is to be interpreted literally.” 2 Wayne R. LaFave, Search and Seizure § 4.9(e). Courts have noted this distinction. See United States v. Reid, 997 F.2d 1576, 1579, 302 U.S. App. D.C. 374 (D.C. Cir. 1993) (government’s reliance on Summers rejected, as defendant “was not a resident of the apartment which was to be searched under the warrant” but only a visitor) (emphasis in original); State v. Torres, 197 Conn. 620, 500 A.2d 1299, 1301 (Conn. 1985) (Summers not applicable, as “the defendant was a visitor to [the residence subject to search warrant] and not an ‘occupant’”); Commonwealth v. Catanzaro, 441 Mass. 46, 803 N.E.2d 287, 291-92 (Mass. 2004) (woman detained had previously asserted “[t]hat’s my apartment,” and thus sufficient showing she was an occupant, meaning one “who has possessory rights in, or control over, certain property”). We decline to expand the meaning of “occupants” under Summers to a person approaching the premises as a visitor.

[*P12] The district court applied the three factors delineated by Summers to the facts present in the case. The district court found the first factor, “preventing flight in the event that incriminating evidence is found,” was not applicable to the case. To support this finding, the district court noted officers permitted Kaul to leave after they seized his backpack. The district court found the second factor, officer safety, was present, but did not justify the seizure on its own. The district court reasoned because the officer testified the apartment door was locked to ensure officer safety, but unlocked the door to allow Kaul to enter, it was clear neither Kaul nor his backpack posed a threat to officer safety. The district court also determined orderly completion of the search did not justify Kaul’s detention because the officers let Kaul leave before the search was completed. In light of this, the district court concluded the intrusion was not slight because no search warrant existed. The district court concluded, “it is a much greater intrusion that cannot be justified by another individual’s probation conditions.” We agree.

[*P13] The district court did not err by concluding the factors justifying the seizure of occupants contemporaneously with execution of a valid search warrant do not apply to Kaul’s initial seizure. The record indicates Kaul was not an occupant of the residence belonging to the individual who was the subject of the probationary search. At most, Kaul was a frequent visitor.

[*P14] The Summers rule permitting detention of an occupant incident to the execution of a search warrant “is categorical; it does not depend on the quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.” Muehler, 544 U.S. at 98. Because the Summers rule “grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed.” Bailey, 133 S.Ct. at 1042. We hold the Summers rule does not apply to a seizure of a non-occupant incident to another individual’s probationary search.

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