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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)