Plaintiff’s initial arrest on mistaken identity was not in violation of clearly established law, and, thus, the officers had qualified immunity. After learning, however, that plaintiff was not the person sought, officers did violate the Fourth Amendment by keeping him in custody. Michigan v. Summers doesn’t apply to arrest warrants because the Fourth Amendment interests in arrest warrants and search warrants are different. Sharp v. Cty. of Orange, 2017 U.S. App. LEXIS 18148 (9th Cir. Sept. 19, 2017):
In deciding the scope of this rule, we examine the original justifications outlined by the Supreme Court in announcing the rule in the first place. Those justifications were three-fold: (1) the detention of occupants whose home is already the subject of a search warrant only “minimally” inflicts an “incremental” intrusion on their rights, Summers, 452 U.S. at 701-02; (2) the search warrant itself implies that someone in the home may have committed a crime, thereby making it constitutionally reasonable to detain the occupants, id. at 703-04; and (3) the police have substantial interests in detaining occupants while the search is conducted, id. at 702-03. These reasons do not apply with the same force to arrest warrants. We assess each in turn.
First, because an arrest warrant targets a person, rather than a dwelling, detaining an occupant who is not the subject of the warrant inflicts an entirely separate Fourth Amendment injury on an entirely separate person—it is not a minimal or “incremental” intrusion because the arrest injured a different person than the subject of the warrant.
Second, arrest warrants do not imply that someone other than the subject of the warrant is guilty of a crime. In fact, the Supreme Court recognized this very principle in Maryland v. Buie: A “search warrant implie[s] a judicial determination that police had probable cause to believe that someone in the home was committing a crime[,]” whereas “the existence of [an] arrest warrant implies nothing about whether dangerous third parties will be found in the arrestee’s house.” 494 U.S. 325, 334 n.2, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (emphasis added) (rejecting the State’s argument that an “arrest warrant carrie[s] with it the authority to search for persons who could interfere with the [in-home] arrest”).
Third, the interests of law enforcement in detaining occupants during a search (mostly) do not apply to the execution of an arrest warrant. The Summers Court articulated three such interests: (1) “preventing flight in the event that incriminating evidence is found”; (2) facilitating “the orderly completion of the search” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force”; and (3) “minimizing the risk of harm to the officers.” Summers, 452 U.S. at 702-3. With the exception of the final factor, these considerations simply do not apply with the same force to arrest warrants.
The first interest—prevention of flight in the event that incriminating evidence is found-is wholly inapplicable to the arrest—warrant context. An occupant might be expected to flee when the police find contraband during the execution of a search warrant. By contrast, an occupant who is not the subject of an arrest warrant is not likely to be arrested himself when the warrant is executed. So there is no real flight risk in the arrest-warrant context.
The second interest—the orderly completion of the search—is also inapposite. The essence of this rationale is that the occupant can help the police conduct the search by opening locked doors, but unless the subject of the arrest warrant is behind a locked door and the co-occupant has a key, this does not apply to arrest warrants.
The third interest—officer safety—is admittedly sometimes present in the arrest-warrant context as well. After all, co-occupants might frustrate the arrest of a family member or retaliate against officers if not properly restrained. But this lone interest cannot be enough to give officers the categorical power to detain home occupants during the execution of an arrest warrant irrespective of whether such a threat actually exists. The Summers Court relied on much more than that to give officers the “far-reaching authority” they now have to execute search warrants, Bailey v. United States, 568 U.S. 186, 133 S. Ct. 1031, 1039, 185 L. Ed. 2d 19 (2013), so reliance on this factor alone is insufficient to extend the Summers rule—a rule of categorical authority—to arrest warrants.
Our decision in United States v. Enslin, 327 F.3d 788 (9th Cir. 2003), is not to the contrary. In that case, we upheld a “de minimis” seizure of a home occupant (requiring only that he show his hands to an officer) during the in-home execution of an arrest warrant for a different person. Id. at 795-98. While we cited Summers for the general proposition that risk to officer safety is minimized when officers take control of a situation, our holding in Enslin was predicated on a fact-specific reasonableness determination—balancing the seriousness of the intrusion against the interest in preserving officer safety in that particular case. Id. at 796-97. Such a fact-bound inquiry would not have been undertaken if the court had extended the categorical Summers rule to the arrest-warrant context. Thus, Enslin does not compel a contrary holding in this case. Officers do not have the categorical authority to detain co-occupants of a home incident to the in-home execution of an arrest warrant.
That does not mean, however, that such a detention would never be authorized under the particular circumstances confronting an officer. Declining to extend the categorical Summers rule to arrest warrants does not leave officers defenseless when entering a home to execute an arrest warrant. There will surely be circumstances when detention of persons on, or immediately near, the premises will be objectively reasonable. After all, entry into a home for the purpose of arresting an occupant can be a dangerous effort, and officers ought to have reasonable tools at their disposal to take command of the situation to protect their own safety and the safety of others. See Summers, 452 U.S. at 702-03 (“The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”). Those tools might include detention of occupants to stabilize the situation while searching for the subject of an arrest warrant or conducting a lawful protective sweep of the premises.
But as we explain, the deputies in this case were not presented with anything remotely near the circumstances needed to justify the detention of Sharp III.
