Michigan v. Summers

LOCATION:Home of George Summers

DOCKET NO.: 79-1794
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Michigan Supreme Court

CITATION: 452 US 692 (1981)
ARGUED: Feb 25, 1981
DECIDED: Jun 22, 1981

Bruce J. Ennis, Jr. – on behalf of the American Civil Liberties Union as amicus curiae
Elliott Schulder – on behalf of the United States as amicus curiae
Gerald M. Lorence – on behalf of the Respondent
Timothy A. Baughman – on behalf of the Petitioner

Facts of the case

The Fourth Amendment prohibits the unreasonable seizure of a person by the government, and the Fourteenth Amendment applies that prohibition to the states. On October 10, 1974, George Summers was leaving his house in Detroit, Michigan, as local police officers arrived with a warrant to search the property for narcotics. The officers requested that Summers help them gain entry to the house, and they detained him while they searched the premises. After finding two packages of heroin in the basement, the officers arrested Summers and searched his person. In his coat pocket, they found an envelope containing heroin, and it was this discovery of heroin⎯not the heroin found in the basement⎯that formed the basis of charges against Summers. At trial, Summers argued that the search of his person was illegal because the officers had no authority to detain him during their search of the house. The trial judge agreed and granted Summers’ motion to suppress the heroin evidence. On appeal, the State argued that Summers’ detention was reasonable, given his close proximity to the house when the officers arrived to perform the search. The State also contended that the concealable nature of the narcotics described in the warrant implicitly authorized the search of people found on the property. The Michigan Court of Appeals affirmed the trial court’s order. The State appealed to the Supreme Court of Michigan, which affirmed the ruling of the lower court.


Did the officers have the authority under the Fourth Amendment to detain Summers while they executed a warrant to search his house for heroin and other contraband?

Warren E. Burger:

We will hear arguments next in Michigan v. Summers.

Mr. Baughman, you may proceed whenever you’re ready.

Timothy A. Baughman:

Mr. Chief Justice, and may it please the Court:

I would like to take just a few moments to review the facts in this case.

But before I do I would like to first state concisely the framework in which the State of Michigan views this case.

We view this as a warrants case involving an issue as to the scope of the search allowed under a warrant which is directed at premises involving an issue as to the authority given to the executing officers by the warrant itself to detain persons on or departing from the premises for a period of time reasonable and necessary to insure the full and faithful execution of that warrant.

Now, the facts are these.

One October tenth at approximately 10:10 p.m. a team of Detroit police officers arrived at a residence in the City of Detroit to execute a search warrant for narcotics and narcotics paraphernalia.

The affidavit in support of that warrant indicated that a purchase of heroin had been made inside that residence the day previous from a black male known as George.

As the officers arrived to execute the warrant they observed respondent, George Summers, come out of the house and proceed down the front steps.

They stopped him and asked him if he lived in the house.

He answered affirmatively and was shown a copy of the search warrant and asked if he could get the officers inside the house.

He responded that he had left his keys inside but could ring someone over the intercom.

He did so and a person later known to be Dwight Calhoun answered the door by opening the inner door.

He realized the officers’ authority and purpose.

He slammed that door shut and the door was then broken down by the police.

Mr. Summers was then brought inside the dwelling and taken into the living room.

Once the premises were secured, and by that I mean, once Mr. Summers and the other seven persons who were present in the house at the time were gathered in the living room, one officer as part of his duties in executing the warrant went to the basement to search, and there he found heroin, in the basement.

Mr. Summers was then arrested for the possession of this heroin, the heroin found in the basement, and a search of his person incident to that arrest revealed heroin also in his jacket pocket.

It was the heroin in his jacket pocket which ultimately formed the basis of the charge against him.

He was bound over for trial on that charge but the charge was dismissed by the trial judge.

The Michigan Court of Appeals affirmed that dismissal, holding that the arrest for possession of the heroin in the basement was without probable cause because the officers did not possess sufficient facts to sustain conviction on that charge.

The Michigan Court of Appeals also rejected the argument that Mr. Summers could be searched under the authority of the warrant itself.

The Michigan Supreme Court granted leave on those issues but decided the case on a different issue after this Court’s decision in Dunaway v. New York, holding that the initial detention of Mr. Summers when he was brought from the porch inside the house was without probable cause and that being without probable cause it was unconstitutional.

And this Court then granted certiorari.

It is our position, first, that the search of Mr. Summers was justifiable under the search warrant itself, that a search warrant for private premises allows a search of reasonable scope and intensity of persons present on the premises where the items particularized in the warrant might be found on the person.

Now, it is true that the officers in this case–

This would go to anybody who was on the premises?

Timothy A. Baughman:

–That’s correct, anyone.

Under your theory, if there were, let us say, six or eight men in the house and, as the officers entered, all of them rushed toward the door and wanted to get out, they could be stopped long enough, on your theory, to fulfill the purposes of the warrant?

Timothy A. Baughman:

That’s correct.

It would be… in this case there in fact were eight persons on the premises, and under our first argument the search, that the people could be searched under the warrant itself, all those persons pockets, their outer clothing, could be searched for the items named in the warrant, assuming, as in this case, that the items are of the type which could be concealed or found on the person.

If there was typewriters or something like that, then they could not be searched, because it would not be reasonable to expect to find the items on the person.

The officers did not, of course, in this case search Mr. Summers on the basis of the warrant, but this Court has held that it is not necessary that the officers have the subjective legal justification which supports their action so long as we objectively, the law does support the action which was taken.

And we submit that that is what happened in this case, that the search warrant does support the search of Mr. Summers.

You don’t think it supports… you don’t think you could hold a person just because, if you find something in the house, you could arrest the owner of the house?

Timothy A. Baughman:

It’s first our position that without regard to whether they had found the heroin in the house they could–

That’s another argument?

Timothy A. Baughman:

–Yes, that they could have searched Mr. Summers simply as they could have searched a nightstand or a desk drawer because the heroin could be inside.

Right; right.

Going back to the hypothetical I gave you, which by coincidence happens to be the same number, is it your theory that if the eight people immediately wanted to dash out of the house, the officers would have no way of knowing which was the owner or who were the owners, and therefore they could detain all of them long enough to consummate the execution of the warrant?

Timothy A. Baughman:

That’s correct.

And in fact, it would be our theory, as I will explain more fully in a moment, that even if a person were to say, I am not the owner, I am a visitor or I am a neighbor, that the officers would not have to rely on that declaration, but that they would nonetheless be allowed under the authority of the warrant to search all the persons present on the premises for the items named, in this case for heroin, if the items might be found on the person.

Mr. Baughman, is there a presumption in Michigan that the owner of the house is responsible for what’s in it?

Timothy A. Baughman:

No, there’s not.

In thought that would be a solution to your problem.

Timothy A. Baughman:

Unfortunately, no, there’s not.

In fact, the Michigan Court of Appeals based its decision in part on the fact that under a peculiar Michigan law it’s circumstantial evidence.

Michigan holds… however, there’s some dispute as to this… that you need to negative all theories consistent with innocence to support a conviction on circumstantial evidence.

And therefore, ordinarily, when there is more than one occupant of the home, you can’t convict anybody for possession of an item found in a common area.

Did you present this first theory that you are presenting to us, below?

Timothy A. Baughman:


That was rejected?

Timothy A. Baughman:

That was rejected by the Michigan Court of Appeals, although the Michigan Supreme Court granted leave on that issue and in fact did not grant leave on the detention issue, which they ultimately decided the case on.

They didn’t reach the search warrant issue.

But the way the events happened, they didn’t search the men until after they had found something else in the house?

Timothy A. Baughman:

That’s correct.

They did not search them–

They just held them?

Although you would have said, you could search him immediately?

Timothy A. Baughman:

–That’s correct.

We would take that position, although we will also argue alternatively that the Michigan Supreme Court was wrong in assuming this Court would reject the ground that he could be searched under the authority of the warrant.

Then we will argue that he nonetheless could have been detained, and once the heroin was found in the basement they did have probable cause to arrest him, and discover the heroin in his pocket.

Mr. Baughman, on this first theory, is this just the theory you advance with respect to a home?

You wouldn’t make the same argument in a commercial establishment, would you?

Timothy A. Baughman:

No, we would not make the same argument.

That’s how you distinguish Ybarra, is it?

Timothy A. Baughman:


And let me turn quickly to Ybarra.

In that case, of course, this Court held that a search warrant for Ybarra did not permit a search of the patrons in the bar.

We believe first, that this is distinguishable in that Mr. Summers had a relationship to the premises in this case, the premises to be searched, and that he was an occupant owner of the premises; whereas the patrons in the Aurora Tap-Tavern in Ybarra had no nexus to the premises at all.

Under a traditional scope and intensity analysis, a search warrant allows the search of places within the premises where it’s reasonable to believe that the items might be found.

Of course you can’t search for typewriters in desk drawers but you could search for packages of heroin in desk drawers.

We believe that Ybarra should be read for the proposition that it is not reasonable to expect to find items named in a search warrant on patrons in a place of public accommodation, but we do contend that the showing of probable cause which was required to justify the intrusion into the private dwelling in this case should be viewed as comprehending within its scope a search of persons on the premises who have a nexus to the premises–

Mr. Baughman, is there anything that would prevent you when you apply for the warrant to ask the magistrate to include in the scope of the area to be searched all persons found on the premises?

Timothy A. Baughman:

–That’s correct, sir.

That could be done, but–

It wasn’t done here?

Timothy A. Baughman:

–That was not done here.

But our point is that a search warrant is ia an anticipatory authorization to search.

For example, you would not have to state in the application for the search warrant or have detailed in the authorization that you wish to search all nightstands found in premises, or you would not have to detail that you wish to search all closets or all shelves.

The warrant authorizes that by allowing a search of the premises.

Now, if persons may be searched under a warrant for premises because the items might be found on their person, as they might be found in desk drawers or nightstands–

Or in clothes in the closet.

Timothy A. Baughman:


–then I don’t believe that adding that language necessarily serves any purpose, although of course we’d be very happy–

Of course–

Timothy A. Baughman:

–if the police had done that.

–The magistrate would normally assume you’d search the nightstands.

Would the magistrates in Michigan normally assume that everybody in the premises would also be searched?

Timothy A. Baughman:

No, I don’t think they would assume that.

I don’t know if they would assume–

Isn’t this really a question of construing constructing the warrant?

Which would be kind of a matter of local practice, I would think.

Timothy A. Baughman:

–Well, I think… the Michigan Court of Appeals held that the particularity requirement prevented them from viewing a warrant for premises as including the persons on the premises within it, but they–

As a matter of the Fourth Amendment?

Timothy A. Baughman:

–They said the particularity requirement referred to Marin v. United States, so I think they were referring to the Fourth Amendment.

Well, now you’ve got me confused.

But they didn’t search him until after they found the dope?

Timothy A. Baughman:

That’s correct.

So they didn’t assume that this warrant authorized them to search him?


Timothy A. Baughman:


That’s correct.

That is, the police, I think it’s fair to say, did not search Mr. Summers on the basis of the warrant, but I think that search can nonetheless be justified on the basis of the warrant, because his persons person is a place within the premises where the items might be found.

But we’re reviewing here the decision of the Supreme Court supreme court of Michigan, are we not?

Because, since they took the case and decided it on a different ground than the Michigan Court of Appeals.

Timothy A. Baughman:

That’s correct.

The Michigan Supreme Court granted leave on the search warrant issue but didn’t reach it.

I find their failure to reach it somewhat inexplicable because I believe that an adverse decision on the detention issue, as they decided, doesn’t necessarily end the case if in fact Mr. Summers can be searched on the authority of the warrant.

So, in effect, you would say, they necessarily rejected this position?

Timothy A. Baughman:

I think that could fairly be said, that it needed to be reached and wasn’t.

I can’t really explain exactly why they didn’t, but I don’t believe, if this Court were to find or that court were to find that Mr. Summers could have been searched under the warrant, then their decision on the detention issue did not end the case, or solve the case, and of course our cert petition raised all three issues, which this Court granted.

I believe the issue is properly here.

Well, it was rejected in the Court of Appeals, wasn’t it?

Timothy A. Baughman:

It was rejected in the Court of Appeals, explicitly.

The nexus to the premises distinction, which I’ve just made as to why, as to how this case is distinguishable from Ybarra, because Mr. Summers did have a nexus to the premises, is a sufficient, but we submit it to be not a necessary distinction between the two cases, because we believe that more importantly, as I mentioned earlier to Mr. Justice Stevens in answer to his question, is the fact that this was a private residence rather than a place of public accommodation.

The difficulty with the relationship of to the person to the premises or the nexus test is that in most cases the police will not have any idea of the relationship of the people to the premises, and in fact people may lie about their relationship to the premises if questions are asked.

As Judge Campbell said in the Micheli case, which is cited in our brief,

“When the stranger in the betting parlor solemnly announces that he is the family doctor, I would not require the police to believe him or inquire further before searching his bag. “

Timothy A. Baughman:

Now, that case, of course, involved the search of personal effects rather than the person, but I believe the logic of the decision applies also to persons.

If a person is to be searched under the authority of the warrant, a nexus test, we believe, is not an appropriate test to be required, that this Court should allow the to search of the person on the premises simply because it is reasonable to believe that the items named in the warrant might be in their pockets.

Particularly when a knock and announce requirement is considered, and Michigan has a knock and announce statute and case law which requires that the officers wait until a person in the room furthest from the door can get to the door to answer it.

Particularly when those requirements are considered, the authority to search persons on the premises makes sense.

I would hasten to add here that although I am pointing out that the fact that the warrant could be frustrated is a justification for allowing a search of persons on the premises, it’s not the sole one.

We are asking this Court to allow a search of persons on private premises under the authority of the warrant simply because it’s reasonable to believe that persons on the premises might have the items on their person.

People are protected by–

And you added before that you have no way of knowing at the threshold who is the owner or who are the owners, and who may be customers, visitors, or neighbors.

Timothy A. Baughman:

–That’s correct.

In this case–

How long a period do you have to resolve that dilemma?

Timothy A. Baughman:

–It would be our position that the police do not have to resolve that dilemma.

They may simply search all the persons on the premises, the outer clothing, for the items named in the warrant.

Because as Judge Campbell said, the police shouldn’t be allowed necessarily to even believe what they’re told, if they make inquiry, because they may be lied to.

They shouldn’t be required to inquire further or to believe the questions.

They should simply be allowed to search, make a reasonable search for the items.

But if they search and find that the man’s got a big packet of heroin in his pocket, do you mean they’re not going to arrest him?

Timothy A. Baughman:

No, then these… the person–

He would be arrested, then, in your–

Timothy A. Baughman:

–He may be arrested for possessing the heroin; yes.

–In your submission?

Timothy A. Baughman:

For example, in this case, if the officers had immediately searched Mr. Summers under the authority of the warrant rather than searching the basement first and finding heroin, and found the heroin in his pocket, he would have been arrested for possessing that heroin.

The search warrant gave reason to believe that there was heroin on the premises and one place it was was in his pocket, and he would be arrested for possessing it.

But how would a person satisfy the officers on the ground at the time that he was neither the owner nor had any connection with the premises if it turned out that he had no contraband on his person?

Timothy A. Baughman:

Well, if he had no contraband on his person I’d assume that he would not be arrested and there wouldn’t be any need to–

But he would have been detained long enough to–

Timothy A. Baughman:

–be searched.

–Submit to the search.

Timothy A. Baughman:

That’s correct, but in many occasions, I would imagine, a search warrant may be authorized for a particular place or a particular person where in fact there is no contraband and none will ever be found.

A person will have submitted to the search and nothing will have been found and they will go on their way and there will be no arrest.

Yes, but I take it your second position is that even if they’d have searched him on the doorstep and found nothing on him, that you would have been authorized to hold him until the search of the house was over?

Timothy A. Baughman:

That’s correct.

And if–


On the grounds that if you find something in the house you will have reasonable cause to arrest him.

Timothy A. Baughman:

–It’s not our position that that’s why he can be held during the search to see if they might later arrest him.

What is it?

Timothy A. Baughman:

In order to assure the full and faithful execution of the warrant, that all the persons on the premises should be able to be detained during the execution of the warrant.

It avoids frustration in that the items could be picked up and hidden, and to protect the officers, while they execute the warrant, from people milling about or even from going outside and causing them some harm.

You mean, if they searched him right away, they could say that nevertheless you–

Timothy A. Baughman:

Wait here until we execute the warrant.

Stay in the spot.

You, officer, watch these eight people while we execute the search warrant, and then when we’re done you can be released.

–Well, a fellow says, I just want to go on my way.

I’m going to get in my car and drive away.

Timothy A. Baughman:

I think, and I’ll turn to the second argument now, that the police have the right to say, you can go on your way when we’re done here, but in the meantime wait until we finish–

Only for safety reasons?

Timothy A. Baughman:

–For safety reasons and–

Because you may be able to arrest him?

Timothy A. Baughman:

–Well, I think because he may be able to frustrate the warrant.

If… let me turn to the second argument and assume, assume that this Court holds that a person cannot be searched under the authority of the warrant.

Or that he can.

Timothy A. Baughman:

Or that he can.

And he has been and there’s nothing found on his person.

In this case, there were eight people on the premises, and since only Dwight Calhoun and Mr. Summers were charged, I’m assuming, I believe the record indicates that the other six were searched, after the heroin was found in the basement, that nothing was found on them, and they were allowed to go on their way.

But they were detained.

Seems to me that you must reach the detention issue before you reach your warrant issue, because the defendant wouldn’t have been on the premises if you hadn’t detained him.

He was outside when you met him.

Timothy A. Baughman:

That’s correct, but–

You wouldn’t say that the warrant gives you the right to search people out in front of the building?

Timothy A. Baughman:

–No, but I think, I would argue–

Well, how did he get inside?

Timothy A. Baughman:

–I would argue that the warrant gives… if the warrant gives authority to search people on the premises, it also gives authority to search those who come out of the premises under the very eyes of the officers as they approach.

For example–

But that’s… so it’s anybody who was in the premises at any time after the warrant is issued?

Timothy A. Baughman:

–No, not necessarily.

I think if a person were to approach the premises after the officers were already executing, that wouldn’t necessarily give them grounds to search those persons.

It’s persons on or departing from.

What about a deliveryman leaving the premises?

Does it make any difference?

Timothy A. Baughman:

Well, I would say–

I know, he said he was a resident, was he?

Timothy A. Baughman:

–I would think that it wouldn’t make a difference unless under a particular case it was clear to any reasonable man that this person could not have any connection with the premises at all.

A man in a mailman’s outfit is walking out with a pouch.

I think they could not search him under the authority of the warrant, but if, as the officers approached to execute a search warrant, a suitcase came flying out the window, I would think that the fact that the suitcase is now outside the premises would not remove it from coverage of the warrant, because it had just been inside.

If person can be searched under the authority of the warrant, the fact that they were observed to depart in the eyes of the officers as they approached shouldn’t moot the question.

The question remains, can they be searched under the authority of the warrant or can’t they?

We submit that they can.

But even if they can’t, or if they have been and nothing found, we submit that in this case that respondent could be searched and that the heroin in his jacket pocket was nonetheless properly discovered because the warrant itself should be viewed as granting authority to the executing officers to detain persons on or departing from the premises for a period of time which is reasonable and necessary to insure the full and faithful execution of the warrant.

And we say that without regard to any individualized suspicion that any particular person on the premises is engaged in criminal activity.

Are you suggesting that the totality of the circumstances is sort of the rule that applies here?

Timothy A. Baughman:

What we’re asking for is, rather than a necessarily a case by case analysis, is for this Court to recognize a generic class, if you will, of detentions forfeiting the seizure of the person which are reasonable, although there is not probable cause to arrest the person, or necessarily reasonable suspicion to believe that they’re engaged in criminal activity.

Now, with Mr. Summers, he had said that he lived in the home and had left his keys inside, and there having been a purchase of heroin made the day before, it could be argued that there was a reasonable suspicion that he was engaged in criminal activity.

But as to the other six people in the house, perhaps you couldn’t say that.

But, nonetheless, we would argue that all those persons could be detained in the living room, as they were, for a period of time reasonable and necessary to allow the officers to fully execute, and safely execute the command of the court which ordered them to search the premises without regard to the–

Suppose on the mailman circumstance that you described, and assume that the house had been under surveillance for three or four hours and the surveilling officers who were there before the warrant was executed had reported to the senior official that the mailman had been in the house for three hours, then there might be some reasonable ground to think that the mailman was not engaged in the delivery of mail, would it not?

And would you say they might be able to search him?

Timothy A. Baughman:

–Yes, under those circumstances they would.

I think the–

He might be delivering something other than mail?

Timothy A. Baughman:

–That’s correct.

Our position is that the police should be able to detain anyone on or departing from the premises for a period of time reasonable and necessary to insure the full and safe execution of the warrant.

In the circumstances that Your Honor has described, I think that would fit that test.

It would be necessary to detain the mailman in order to fully and faithfully execute the warrant, although I think in that example also… back to our first issue, the search warrant, that the mailman under those circumstances could probably be searched under the authority of the warrant if–

I think you ought to make a distinction between the mailman and the man in the mailman’s uniform, because if he’s a legitimate mailman and you arrest him, I think you’re going to be in a little trouble.

Timothy A. Baughman:

–I believe that’s probably correct.

I think that the example given was probably a courier acting as a mailman.

I assume that’s what the Chief Justice meant was the man in the uniform.

Timothy A. Baughman:

Our position is, on this detention issue, that the Fourth Amendment contains two separate and independent clauses, a reasonableness clause and a warrant clause, and that the warrant clause is textually linked to the probable cause concept, but that arrests, seizures of the person, do not generally fall within the warrant clause and that even when they do, as in Payton v. New York, the concern of the Court is not with the warrantless seizure of the person but with the warrantless entering into the dwelling to effectuate that arrest.

So we believe that seizures of the person should be reviewed for reasonableness and that detention of the persons on or departing from private premises when a search warrant is about to be executed is a class of reasonable detentions under the Fourth Amendment.

We go through a number of cases from this Court in our brief, and this Court always expresses the test as striking a balance between the public interest and the individual’s right to personal security free from the arbitrary interference by law enforcement officials.

And we believe that the teaching of those cases is that detentions are constitutional, if reasonable.

And that reasonableness is a balancing between governmental interest and the individual’s interest in personal liberty.

The more severe the intrusion, the more information and the higher the governmental interest that’s required to justify it.

Arrest to hold someone to answer for a crime requires what we would call probable cause in the traditional sense, because as stated by Chief Justice Warren in the Terry case, an arrest is the initial stage in a criminal prosecution and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial and conviction ultimately follows.

Detentions for custodial interrogations, as this Court held in Dunaway, require traditional probable cause because they are in many respects indistinguishable from an arrest to hold someone to answer for a crime.

Other classes of detentions, this Court has held, do not require probable cause in the traditional sense, Terry stops, certain sorts of border stops.

And we submit that a search warrant itself should be viewed as authorizing a class of reasonable detentions, as I’ve said, those detentions which are reasonable and necessary for the full and safe execution of the warrant.

That authority should be implied from the fact of the warrant itself.

The governmental interest in allowing this class of detentions, we believe, is a weighty one, insuring the full execution of the warrant, avoidance in many cases of frustration of the warrant… since, as I’ve said, the police have to knock and announce.

And even in this case, although Mr. Summers was coming out of the premises as the officers approached and we don’t know what he had seen or hadn’t seen, it is certainly not inconceivable that he saw the eight officers arriving, and put the item in his pocket and attempted to leave.

And it’s certainly not inconceivable that were he allowed to go about his business outside, that he might, as the Michigan Supreme Court dissenters noted, summon aid to interfere with the execution of the warrant or interfere with it himself from the outside.

Mr. Baughman, did they search the other six?

Timothy A. Baughman:

They did after they found the heroin in the basement.

They searched those?

Timothy A. Baughman:


It would seem to me that a person outside the premises might be more dangerous than persons inside the premises, so I don’t believe that the fact that Mr. Summers was coming out changes our position.

Persons on or departing from the premises should be able to be detained to insure the full execution of the warrant and the faithful execution of a warrant.

A magistrate has determined in this… after all, in these cases, that there is probable cause to believe that items related to criminal activity may be found on the premises.

What is the Michigan law, or are there some limits under Michigan law as to whom you can arrest if you find heroin in his house?

Timothy A. Baughman:

There’s some controversy as to that.

The Michigan Court of Appeals held that you couldn’t even arrest the owner because you wouldn’t have sufficient facts to convict.

We believe they applied the wrong standard, three justices in the Michigan Supreme Court.

But that’s Michigan law, isn’t it?

Timothy A. Baughman:

That’s Michigan… I believe that’s an incorrect statement in this particular case also of Michigan law.

Of Michigan?

We haven’t anything to do with that.

Timothy A. Baughman:

No, I believe that if this Court were to determine that Mr. Summers was properly detained initially, then I think what this Court could do–

You mean that detaining him didn’t violate the Fourth Amendment?

Timothy A. Baughman:

–Didn’t violate the Fourth Amendment, as the Michigan Supreme Court held, then the issue that would remain would be, could he be arrested validly on probable cause for the heroin found in the basement?

And the Michigan Supreme Court–

Then could he be arrested, and then could he be searched?

Timothy A. Baughman:


And the Michigan Supreme Counrt didn’t reach that question because of their decision on the threshold question of the initial detention, which they decided on the basis of the Fourth Amendment.

But the dissenters did reach that question?

Timothy A. Baughman:

The dissenters did and would have found probable cause: We’re confident that–

Even though the consenters conceded that under Michigan law something found in the basement of the house owned by somebody is not sufficient evidence to convict that somebody of possessing–

Timothy A. Baughman:

–That’s right.

The dissenters pointed to law from this Court and from the Michigan Supreme Court in the past, which holds that an officer is… probable cause exists when a lay person, a person of reasonable caution and prudence would believe that a crime was being committed, not whether the officers have sufficient evidence to convict.

We believe the Michigan Court of Appeals erred in that and that if the Michigan Supreme Court reaches the question, we’re confident they’ll, they’ll also reach that position.

But they didn’t reach it.

And they didn’t reach it because of this Court’s decision in Dunaway v. New York.

–Mr. Baughman, have you told us how long respondent was detained before he was searched?

Timothy A. Baughman:

The search began at 10:10 p.m., approximately, the officers testified.

And the return to the search warrant, which is in the Joint Appendix, is signed both by Mr. Summers… pardon?

Is signed at what time?

Timothy A. Baughman:

It’s signed at 11 o’clock.

So, at the outside, the search took 50 minutes.

And I would be assuming that respondent… I would assume that respondent was arrested sometime prior to that, after the heroin was discovered in the basement.

At the outside, it’s 50 minutes.

Timothy A. Baughman:

Thank you.

Warren E. Burger:

Mr. Schulder.

Elliott Schulder:

Mr. Chief Justice, and may it please the Court:

In the brief time available to me I would like to address the aspect of this case that is of primary concern to the Federal Government.

We view this case and the decision of the Michigan Supreme Court as sweeping well beyond the context of the execution of a search warrant.

The question here is whether the Michigan Supreme Court properly read this Court’s decision in Dunaway v. New York, to hold that any detention of a suspect beyond a momentary stop for brief questioning is not permissible under the Fourth Amendment, regardless of its reasonableness unless the officer has probable cause to arrest the suspect on criminal charges.

We believe that this decision is inconsistent with this Court’s basic approach in this area of Fourth Amendment law, and that it unjustifiably precludes law enforcement officers from engaging in appropriate and legitimate law enforcement investigative activities.

In Dunaway the Court held that the detention of a suspect for custodial interrogation required probable cause for his arrest.

We believe that that was undoubtedly a correct result.

The detention process itself is an unstructured and potentially open ended one.

Moreover, as Justice Stevens noted in his concurring opinion in Dunaway, the possibility of obtaining a confession may increase in direct proportion to the length of the detention.

Most importantly, we submit, the police could prolong investigative stops in every case on the basis of reasonable suspicion, if they could simply justify the detention on the need for continued interrogation.

Thus, as the Court held in Dunaway, to have allowed prolonged detention in that case simply on the justification of custodial interrogation, would have permitted the police to go well beyond the narrow confines of the reasonable suspicion stop standard that the Court developed in Terry and its progeny.

However, as Mr. Justice White emphasized in his concurring opinion in Dunaway, there is room within the Fourth Amendment, and the Fourth Amendment’s reasonableness standard, to accommodate certain exceptions to the normal rule of probable cause where flexibility is essential.

Terry provides a case in point.

The detention in Terry was momentary.

It occurred as the officer observed Terry and his companions parading around in front of a store and looking as if they were about to commit daylight armed robbery.

The officer in that case approached, asked a question of the suspects, and when the suspects muttered a response he seized Terry, turned him around, patted the outside pockets of his coat, discovered a weapon.

That detention, although it took only several seconds, the Court held was a seizure of the person under the Fourth Amendment.

However, since the seizure was so different from the type of intrusion that accompanies an arrest, the Court found that there was a narrow exception to the probable cause requirement, and that reasonable suspicion alone was sufficient to justify the stop and the frisk of Terry.

Now, in subsequent cases, the Court has applied the Terry reasonable suspicion standard to stops of automobiles and in Brignoni-Ponce the Court noted that the stop in that case involved simply the asking of several questions.

The Government had stated that the stops had taken usually no more than one minute.

In Martinez-Fuerte, however, involving fixed checkpoint stops, the Government in its brief pointed out that the average length of detention at the San Clemente checkpoint was from three to five minutes.

That was at the secondary area where the officers in their discretion were able to direct drivers over for further investigation.

And that detention occurred without any requirement of reasonable suspicion at all.

The Michigan Supreme Court in this case held that any detention for more than a brief or momentary period is per se unreasonable in the absence of probable cause without regard to the particular circumstances that may justify the detention.

We believe that this approach is not only contrary to the Fourth Amendment’s central notion of reasonableness, it’s also unduly restrictive of legitimate law enforcement activities.

There are numerous occasions when a suspect’s responses to an officer’s questions may intensify the officer’s suspicions and yet not necessarily provide probable cause to arrest.

In these situations the police may attempt to maintain the status quo for a limited period in order to determine whether to arrest or release the suspect.

As we pointed out in our brief, we have given several examples, such as the situation where the police responding to a report of a burglary or robbery see a suspect near the scene of a crime, pick him up, and return him to the scene for possible identification at a show up.

Elliott Schulder:

Similarly there is a situation involving a computer check where the police stop an automobile which they suspect reasonably, but have no probable cause to believe, is stolen.

They then radio in to headquarters for a check to see whether in fact the automobile has been reported as stolen.

Under the Michigan Supreme Court’s decision in this case these reasonable examples of good police work would not survive constitutional scrutiny.

We wish to stress that our position here will not leave the police in an unstructured situation where they may arbitrarily detain suspects for extended periods on no more than a whim.

In the first place, the officer must have reasonable articulable suspicion that the individual is involved in criminal activity before he may stop the individual for brief inquiry.

In order to detain the individual further after the individual has responded to the officer’s questions the officer must have in mind a specific, independent avenue of investigation that requires the continued presence of the suspect, and that is reasonably likely to resolve the matter one way or the other, that is, whether to release or arrest the suspect within a relatively short time.

The police may not detain a suspect on the basis of a vague hope that somehow evidence of his criminal conduct will materialize.

This case provides a good illustration of a situation–

Mr. Schulder, do you adopt the State’s first position?

I don’t think you quite are adopting it?

Elliott Schulder:

–We have not addressed the situation.

Well, specifically, could they detain someone leaving a house because they had a warrant to search the house, under your rationale you’re now advancing?

Elliott Schulder:

Under our rationale, the police would not be authorized to stop a person simply because he happens to be, and detain a person for the entire duration of the execution of the warrant, simply because he happens to be leaving the premises.

That would not constitute sufficient reasonable suspicion that he had some connection to criminal activity?

Elliott Schulder:

That’s correct.

If the police made inquiry and determined that the person lived on the premises or had some kind of ongoing connection with the premises–

Which they did here.

Elliott Schulder:



I was about to say that the detention in this case fits perfectly within our theory, that is, as the respondent was leaving the house, the police stopped him, they ascertained that he lived on the premises, and they detained him there during the execution of the warrant.

We justify, in contrast to the State, the primary justification for the detention in our view… and I’d like to address something that Justice White had mentioned earlier… our primary, the way we view the case, the primary justification for detention here is to see whether or not the police would have sufficient evidence to arrest the respondent after the search was completed.

We believe that–

Suppose there was clear Fourth Amendment law to the effect that just because you discover heroin in a house doesn’t mean you have probable cause to arrest anybody on the premises?

Elliott Schulder:

–Well, we would still say that detention of a person for the period, of a person connected with the premises for the period of ascertaining whether there was or was not drugs or other contraband sought in the warrant, would still be reasonable.


If you… suppose you found the heroin but you still couldn’t arrest him?

Elliott Schulder:

Well, suppose you found the heroin and then you were able to discover that he in fact was connected to the heroin?

By asking?

Elliott Schulder:

By asking, by inquiring of the suspect; that’s correct.

That will certainly provide proper support–

I suppose your position is, though, that at least, if you found heroin in the house, you should be able to arrest, have probable cause to arrest the owner?

Elliott Schulder:

–That’s correct.

We would agree with that submission.

Let me give you a slightly different hypothetical.

You have a warrant to search a house owned by a named and described person for weapons thought to be on the way to delivery to the IRA in Ireland.

Would not the police be able to search every person in that house immediately on the Terry concept?

Elliott Schulder:

Well, we’re not saying that the police would not be able to search people in the house if they have sufficient basis to believe that the people may have weapons on their persons.

I’m giving you the facts.

Would a policeman in his right mind not want to search every person in that house if they’re there for the purpose of finding weapons that would–

Elliott Schulder:

I would agree that a policeman would properly–

–For his own safety?

Elliott Schulder:

–For his own safety; and the Fourth Amendment would not preclude him from taking that type of action.

Well, it might be different for the search for some other kind of a commodity.

Elliott Schulder:

That might be true.

Thank you.

Warren E. Burger:

Mr. Lorence.

Gerald M. Lorence:

Mr. Chief Justice, and may it please the Court:

I’d like to address the Court first on the detention matter.

The search warrant was obtained for actions that took place the night before at this residence of the respondent.

Under Michigan law an affiant or an informant through an affiant, in this case it was the affiant police officer, went to a magistrate and presented what he swore to occurred the night before the alleged entry with the search warrant.

Under Michigan law such actions must satisfy the examination of the magistrate, who is the issuing force for a search warrant.

In this particular case a search warrant was issued under the authority of a magistrate for the premises for the purposes of searching the premises only… and that “only” is just my word… to seize, secure, tabulate, make return according to law, of the following property and things.

One, heroin; two, any other narcotic material and paraphernalia.

Nothing more.

Now, if that examining magistrate was sufficiently convinced that a search warrant should be issued for persons or a person, that would have been done.

Is it frequent, frequent in Michigan that search warrants are issued to search people?

Gerald M. Lorence:

Just like Ybarra, Your Honor.


Gerald M. Lorence:

Just like Ybarra.

Well, is this–

Gerald M. Lorence:

Greg was the bartender.

The search warrant specified the bartender, Greg, in the–

–Well, usually if you’ve got probable cause to think somebody’s got contraband on them you get an arrest warrant, don’t you?

Gerald M. Lorence:

–Not if they want a search warrant.

In this particular case they wanted a search warrant for the premises.

If they have names of persons or a person with a sufficient description that satisfies the requirement of the magistrate, such search warrant… and it’s very common in Michigan and in Detroit, where this case originated, for the search warrant to specify not only the contraband to be seized and that the house be searched for such items, but also any person or persons.

Well, the Fourth Amendment says that the warrant should specify the places to be searched and the persons to be seized.

Now, is that what you do in Michigan?

Gerald M. Lorence:


You specify the persons to be seized–

Gerald M. Lorence:


–Or searched?

Gerald M. Lorence:

Place to be seized, and… place to be searched and a person to be seized.

Well, that’s different.

Do you think there’s a difference between a public place like a bar, the bar in Ybarra, and a private dwelling?

Gerald M. Lorence:

Yes, I do, Your Honor.

I think that a person, contrary to what’s been said here, should have and does have greater rights in his residence, in a private place, than in a public place.

Ybarra guarantees the Fourth Amendment rights to the patrons of that bar and the prosecutor… or, it is the petitioner here, is asserting that a person in his own private dwelling, or in this particular place in this particular situation, outside the private dwelling, has less rights.

Well, is there anything to the notion that in a public bar or restaurant there is no assumption that any one of the individuals has any connection with or knowledge of the others, whereas in a private home, if you have eight people there, there is some possibly reasonable assumption that they have some connection with each other, or they wouldn’t be gathered there?

Gerald M. Lorence:

That may be so, but I think–

May be?

Or is?

Gerald M. Lorence:

–the individual, wherever he is, has a right of privacy under the Fourth Amendment, and I don’t think just the mere fact that somebody lives in a house… and that’s the only information that the police officers had when they detained and seized the respondent in this case… was sufficient probable cause, and it wasn’t a reason to detain him, and wasn’t a reason, wouldn’t be a reason to search him.

Well, do you say there has to be probable cause in the constitutional sense of the Fourth Amendment in order for any sort of detention to take place?

Gerald M. Lorence:

Well, in this particular situation, after the search warrant was gotten, and they, the police officers… and you’re talking about seven police officers, a precinct narcotic unit, coming up the street, getting out of their vehicles, and stopping and detaining the respondent in this matter outside the premises.

I think they had a right–

Knowing that he just came out of the house?

Gerald M. Lorence:

–Knowing that he just came out of the house.

No dispute about that?

Gerald M. Lorence:

Well, that’s what they said, that they saw him coming out of the house.

But on the premises in the sense that he is on the land to which that house is attached?

On the door step?

Gerald M. Lorence:

Well, we–

Was he or wasn’t he?

Gerald M. Lorence:


We call it curtilage.

I know this Court hasn’t spoken of curtilage, probably, in 40 or 50 years, but he was not inside the premises, he wasn’t on the porch, he was on the sidewalk going to the street.

Detroit is uncommon to many other places in terms of the way people live in housing structures.

We have a predominance of single dwelling homes in our city as opposed to Washington or New York, where there are many apartment structures, and sometimes the buildings come right up to the sidewalk.

Here we have a single dwelling home in a residential area, as a matter of fact, across the street from a school, and there is a porch that comes out of the house, then there are steps, and then there is a walk down to the common sidewalk that goes along the street and then some area between that sidewalk and the street.

Now, when the police officers came up and detained Mr. Summers, they had a right under Terry to do that.

I believe they do.

And they had a right to give him a search, a pat down, for a weapon.

But they didn’t do that.

They did not feel that they were in any danger, and they did not feel that it warranted a search or pat down.

Well, do you say that the only thing that you can do on less than probable cause, then, is a pat down for weapons?

Gerald M. Lorence:

Under the situation in this particular case, yes.

Well, generally?

I mean, how about Martinez-Fuerte, Brignoni-Ponce, Pennsylvania v. Mimms?

Gerald M. Lorence:

Well, I think under certain cases there are limited inquiry.

I mean, this Court has spoken about, doesn’t a police officer have a right to come up to an individual on the street and ask him a question?

Now, the respondent here wasn’t exactly on the street, but I do think that they had a right to come up and inquire.

They made an inquiry.

The respondent said, yes, I live here.

Now, I think that the police officers had a right for a brief momentary detention to inquire, to guarantee their safety, to find out, who is this man?

Do you live here?

At that particular point, I think that is legitimate police inquiry.

Well, how about the fact that he lives there and they have a warrant to search the place for drugs?

Doesn’t that permit further inquiry of him?

Gerald M. Lorence:

But they didn’t inquire anything.

Well, doesn’t that permit further detention of him?

Gerald M. Lorence:

I don’t believe so.

I think that after that, that detention was a seizure and it was in violation of his Fourth Amendment right.

And I feel that under circumstances that seizure took place the minute they turned him around, and they took him back onto the porch.

But would it make any difference, then, whether he lived there or not, under your theory?

Gerald M. Lorence:

Whether or not this was an illegal detention?

Suppose he said that, I do not live here?

You would say they could not detain him.

And you would say the same thing when he answered that he could live there.

Gerald M. Lorence:

Well, I don’t believe that they would have any probable cause to detain him under the facts of this particular case, of the respondent.

And in your particular situation I think they would have even less to detain him.

I think the mere fact that they detained him was an intrusion on his expectation and right of privacy.

I’m merely saying that, as I understand your theory, it doesn’t make any difference whether he said he lived there or that he did not live there.

Gerald M. Lorence:

Unless they had anything further; unless they had probable cause to do what they did.

Well, so if their detention was to simply question and ask him whether he lived there, and the reply under your theory was bound to be unhelpful for the police one way or the other.

Why do you say they had a right to ask him whether he lived there or not?

Gerald M. Lorence:

I said, yes.

I think they could ask to have, the police had a right to ask him.

If I understand your question, they asked him a question which I believe they legitimately had a right to ask.

But surely my brothers Blackmun and Rehnquist are correct, aren’t they, in what their question suggests, that if you are correct, that it was violative of your client’s constitutional rights to seize him after he said, yes, he lived there?

Certainly you would be correct if the answer had been, no, I don’t live here.

Gerald M. Lorence:


In other words, it didn’t make any difference what the answer to the question was.

Gerald M. Lorence:

That’s correct.

While the… certainly the police were, as you can see, were free to ask the question, it was kind of a pointless question if whatever the answer was, they were powerless to do anything about it.

Gerald M. Lorence:

Well, this Court has already responded in terms of a situation like that.

Well, that’s your submission.

I understand that.

That’s the issue in this case.

Gerald M. Lorence:

He could have said, goodbye.

Gerald M. Lorence:

I don’t want to answer your questions, and walk off; at least, try to walk off.

If he says, I’m just an encyclopedia salesman, and was only in the house for a few minutes, do they have to believe him?

Gerald M. Lorence:

I think that would be a… I think that would be evasive and give the police room.

Well, he might… let’s assume he might be an encyclopedia salesman.

Gerald M. Lorence:

At 10:10 p.m. on a dark night, coming out of this house?

I have some question about that.

And yet you say that, when he said, no, I live here, it was a violation of his rights.

But you suggest it would not have been if he’d said he didn’t live there but was just a casual visitor, in your answer to the Chief Justice just now.

How can that follow?

Gerald M. Lorence:

I think that whether of not he responds either way, they have a right to ask that question and he has a right to answer any way he wants.

I don’t believe that it gives any reason for the police to be suspicious, to detain him, to take him back into the premises.

That’s what I thought your position was.

Well, that’s a meaningless charade, then.

You say they have a right to ask him the question but regardless of what answer they get from him, they can do nothing that they couldn’t have done had they never asked the question in the first place.

That’s your position?

What if he said, it’s none of your business?

Gerald M. Lorence:

I think he has a right to say that.

And that doesn’t give the officers any extra reason?

That’s what you suggest?


Gerald M. Lorence:

Well, they have a search warrant for the premises.

They didn’t have a search warrant for him, they didn’t even have any description in their search warrant that a person of the respondent’s character and description was wanted.

Well, suppose the police have, are suddenly told by a man who comes into the police station that he’s just come from an address, and he knows that one of the undercover agents has been murdered in that house by somebody in that house.

He doesn’t know who did it, but he knows he’s dead and somebody did it there.

And they go to the… and everybody agrees there’s probable cause to go search the house, and they get a warrant to search the house, and as they approach here come six people out of the house.

Can’t they detain them until they’ve… all they’re trying to, see if there’s a dead man in the house?

You say, no, absolutely not.

Gerald M. Lorence:

So I–

They have probable cause, everybody concedes that probable cause to believe that somebody in that house killed somebody and that the body’s there.

Gerald M. Lorence:

–In this particular situation of the respondent, they didn’t have any probable cause.

But how about my question?

Gerald M. Lorence:

Well, I think if there is probable cause, that there is a reason to detain him, at least momentarily.

Each person?

Each person until they find the body and then try to figure out who’s responsible?

Do they have to… can’t they hold them for a reasonable time to inquire, to see if they can find out which of the six people may be implicated?

Or maybe they all are?

Gerald M. Lorence:

I think that they have a right to make a Terry-type stop and investigation.

Then that’s all?

If the fellow, if… in my example, if six people exit from the house and they want to inquire, make some inquiries from them, and each of them says, none of your business, they must let them go?

Gerald M. Lorence:

No, I think with the probable cause that you have indicated–

Well, assume probable cause as I… the only facts I changed was change cocaine or drugs to a murder.

That’s all.

Gerald M. Lorence:

–No, you indicated that there was probable cause.

Well, probable cause, I said there was a murder in the house and that somebody in the house was responsible for it.

What difference does it make whether it’s heroin or a dead body, for these purposes, if that’s the information?

Gerald M. Lorence:

I think the detention in the case of the respondent with a search warrant in the hands of the police officers is different from the circumstance that has been given by Justice White.

And I think that there isn’t any probable cause in the case of the respondent in my case and there wasn’t any reason to detain him, they didn’t have any probable cause.

Just the fact that he lived, he said that he lived in the premises.

I think you have a situation where there is someone who indicates that someone was murdered in this house, where you do have probable cause.

And I think you have a right to detain.

There are certain–

What’s the difference?

In each case it’s a felony, one a little more gruesome than the other, perhaps, and I’m not sure which is worse.

But what’s the difference?

Gerald M. Lorence:

–I think it comes down to the intrusion on a person’s right against an illegal, unreasonable stop and–

You mean it’s all right to intrude if maybe there’s a dead body in there but it’s not all right to intrude if there is a lot of heroin?

Gerald M. Lorence:

–I think that it comes down to any situation where somebody coming out of the premises, like in the particular case of the respondent, where they do not have probable cause in terms of the respondent or any person that comes out, that they do not have a right to detain any more than to make the inquiry of whether or not you live there or what your name is, or what’s your address, or to secure that person in terms of any potential weapons, if the police officers think that they have weapons.

I’ve got a real problem.

The police have a search warrant to search this house in this case?

Gerald M. Lorence:

That’s correct.

And they search the house and they found the heroin.


And this man said he lived in that house.

What should the police then do?

Say, would you mind waiting here until we get a warrant?

Gerald M. Lorence:

Outside the house, Your Honor?

This very case.

After they found the heroin, what should they have done insofar as this man was concerned?

Turned him loose?

Gerald M. Lorence:

I don’t–

Say, bye bye, or what?

Gerald M. Lorence:

–No, I don’t think that they should have turned him loose.

Well, what should they have done?

Gerald M. Lorence:

I think they should have gotten a warrant to search him.

They did not have–

What should they do with him in the meantime?

Turn him loose?

Gerald M. Lorence:

–Well, I don’t see anything wrong with that.

They knew where he lived, they had the ability to get his name and address.

They had his name and address then.

Gerald M. Lorence:

All right, they–

What should they have done?

Gerald M. Lorence:

–Inside the house?


No, sir.

My story is, after they found the heroin and they came out and looked at him and said, you’re the one who said you lived in that house, right?

At that stage, what should they have done?

Gerald M. Lorence:

–They should have advised him of his Miranda warnings, because a police officer said that he made an initial–

And could they have arrested him after the Miranda warnings?

Gerald M. Lorence:

–I don’t think that they had probable cause to arrest him.

Well, what should they do, let him go?

Gerald M. Lorence:

I think that they had no other choice than to let him go.

But to let him go?

Gerald M. Lorence:


Now, I’d like to go back, Your Honors, to–

Well, your final answer to Justice Marshall’s question is that they simply have to let him go at that point?

Well, if you’re correct, they wouldn’t have had him, he wouldn’t have been there.

Gerald M. Lorence:

–If I was correct, they wouldn’t have taken him inside the premises.

He wouldn’t have been there at the time they discovered narcotics in the basement.

Gerald M. Lorence:

That’s correct.

If you’re correct.

Gerald M. Lorence:


Now, let’s go back to the detention.

The detention outside the premises involved taking of the respondent back onto the porch and using him as an instrument to gain entry into a premises.

Now, we’ve been talking and the Solicitor General’s been talking about duration, in terms of Dunaway.

I think that there is duration here but I think there is something more grievous.

I think the fact that this precinct narcotic team armed with flak jackets, long guns, guns drawn, and a battering ram, coming up the walk, detaining the respondent–

Well, the narcotic trade uses those too, you know.

Gerald M. Lorence:

–Yes, but taking this civilian, not knowing who he is other than the fact that he resides in the house, I don’t think under any rule justifies taking him to that front door, using him as an instrument to gain entry–

Yes, but it didn’t work.

Gerald M. Lorence:

–But battering that door down, knowing as this Court has said many times what kind of actions and activities go inside a place where drugs are kept or sold, placed the respondent in a situation where he could have been the first one to catch a salvo of gunshots and been killed right on the spot.

I think that–

That sometimes has happened to the officers on the outside when they made the entry on the inside, hasn’t it?

Gerald M. Lorence:

–That’s correct, Your Honor, and police officers in their difficult task take–

That’s the rationale of Chief Justice Warren in Terry, to try to make sure that at least the odds are leveled off between–

Gerald M. Lorence:

–And that’s why Terry has become a limited exception to the exclusionary rule.

But here you have a man who has not taken on the responsibility and the dangerous responsibility that police officers take on, who is made a volunteer who is placed in front of that door.

He presses that doorbell, yes, and the man that comes to the door sees that there are people on that porch, slams the door, the battering ram goes in, and Mr. Summers is kept right there, without a flak jacket, without any responsibility, to take care of himself.

He’s placed in a position where I can’t think of anything that’s more serious than this in terms of denying his personal liberties.

–And for that reason we should reverse his conviction for heroin?

Gerald M. Lorence:

I believe that the detention–

Isn’t there something missing in between those two?

Gerald M. Lorence:

–I think the detention, the violations of his Fourth Amendment right were so severe outside the premises that their taking him into the premises denied him–

Would your case be the same if they didn’t… if they had left him outside in the street sitting on a featherbed?

Would your position be the same?

Gerald M. Lorence:

–If they had left him without any controls, without any threat, then he was left to go his way and to exercise his freedom of movement.

That’s not what I said.

I said, instead of taking him to the front door, they had held him sitting on a featherbed on the porch.

Gerald M. Lorence:

No, I think any–

Would you be making the same argument?

Gerald M. Lorence:

–Yes, the same argument.

Well, why… oh, you think this just adds on?

Gerald M. Lorence:

Yes, I do.

The fact that they used him at the door?

What if they’d simply asked him for the key, if he said he lived there?

Gerald M. Lorence:

Well, if he had given them the key, I think they still could not have seized him, detained him, and taken him back into the premises.

That would obviate the necessity for his going back and himself ringing the doorbell and exposing himself to all this possible danger which you have just described.

Gerald M. Lorence:

That’s correct.

They didn’t do that.

I think the detention, once they went onto the porch and took him onto the porch, I think that was the detention, the seizure, and the arrest.

What if they had asked him for the key and he’d said, I have it but I won’t give it to you?

Gerald M. Lorence:

I think he had a right to keep the key.

I don’t think he had a duty to give them the key.

I don’t think he had a duty to help them open up the door.

Do you think that his refusal to give them the key would have given the police grounds for any additional inquiries or any additional detention?

Gerald M. Lorence:

I think perhaps they could have inquired but they didn’t, in this particular matter, inquire beyond the fact about, if whether or not he lived in the premises, and whether or not he could open up the door.

I think each human being has an expectation of privacy which is guaranteed under the Fourth Amendment, and any kind of intrusion beyond the exceptions that have been carved out by this Court, like the border cases, like the Terry-type search, I think are a violation of the person’s expectation of privacy, of his person.

I think in this particular situation the respondent came out of his premises late at night.

He had every expectation of privacy as he was coming down the steps of his home, and down the sidewalk, and when the officers detained him I think that violated his Fourth Amendment right to privacy.

I’m sorry, isn’t the red light at–

Warren E. Burger:

No, you have some remaining time, until the red light goes on.

Gerald M. Lorence:

–All right, thank you, Your Honor.

I think the history of the Fourth Amendment being a colonial response to the English practice, against general warrants, is a firm basis for this Court to continue the practice of holding that the Fourth Amendment guarantees each individual a right to be secure in his person, his house, his papers, and effects, against unreasonable searches and seizures.

To continue the practice adopted in 1961 in Mapp v. Ohio?

Gerald M. Lorence:


I don’t believe that this Court should carve out another exception in the Terry line, in the border cases.

Well, what do you think we were doing in Mapp v. Ohio?

We were certainly rewriting something in the Constitution.

Gerald M. Lorence:

But I don’t think that it was depriving a person of his guaranteed right to be free from any seizures or searches?


It was imposing a requirement on the states that hadn’t previously been imposed on them.

We overruled Wolff v. Colorado and imposed upon the states, presumably as part of the Constitution, the obligation to enforce an exclusionary rule.

That’s what Mapp v. Ohio did.

Gerald M. Lorence:


And I think that the Court should continue protecting an individual’s Fourth Amendment right and not expand the doctrine of Terry v. Ohio and the border cases, and expand upon those to create anything in terms of a good faith exception or a balancing test, because I believe that if police officers, in a situation like the respondent’s, who have a search warrant for the premises, detain and deprive a person of their right of privacy on the outside of the premises for which they have a search warrant, they could stop not only the mailman but a lady with a baby buggy, or a nine year old boy coming out of the premises, and take him back into a situation that would be dangerous and also search him.

And I don’t think that the search warrant for the premises under our law in the State of Michigan, permit a search beyond the bounds that are outlined in a search warrant.

And in this particular case the search warrant said, premises.

It didn’t say anything about persons coming out of the premises, and I think the police officers had a duty to let that person go after they inquired as to who he was and were sufficiently satisfied that that person wasn’t a danger to them.

They didn’t search Mr. Summers for any weapons when he was stopped on the sidewalk, so they didn’t feel the danger, as in Terry.

But you agree that the Supreme Court of Michigan decided this case on federal grounds only?

Gerald M. Lorence:

Yes, I… they decided on the detention matter and they found that there was an illegal detention and violation of the Fourth Amendment, and on that basis they made their decision.

Thank you, Your Honors.

Warren E. Burger:

Very well.

Mr. Ennis.

Bruce J. Ennis, Jr.:

Mr. Chief Justice, and may it please the Court:

I greatly appreciate the Court’s permission to argue as amicus in this complex and important case.

I will not address the merits.

Rather, I will argue that there are both jurisdictional and policy grounds why the Court should not resolve the merits in the unique circumstances of this case, and should instead either dismiss the writ as improvidently granted or remand for clarification.

Briefly, as the trial court and the Court of Appeals both ruled, there are adequate and independent state law grounds that would support the same judgment and would require exclusion of the evidence regardless of this Court’s rulings on any of the federal questions presented by petitioner.

We have just heard from Michigan counsel that the Supreme Court of Michigan decision rested on federal grounds.

Bruce J. Ennis, Jr.:

That is entirely correct, Your Honor.

The decision of the Supreme Court of Michigan did rest on a federal ground.

And on no state ground?

Bruce J. Ennis, Jr.:

And on no state ground.

That is correct, Your Honor.

Well, since when do we dismiss in those circumstances?

Bruce J. Ennis, Jr.:

Your Honor, I think that the principle that emerges from all of this Court’s cases on adequate and independent state law grounds is that this Court will not review a state court judgement unless the decision on the federal ground was necessary to that judgment and in this case, given the rulings of the trial court and the Court of Appeals which both reached the same judgment on state law grounds, it cannot be said that it was necessary.

But the highest court in the state has now certainly given some indication that it thought it was necessary.

Bruce J. Ennis, Jr.:

Well, Your Honor, the highest court in the state has not reached either of the state law grounds that the trial court and the Court of Appeals both relied upon.

Would it be reasonable or would it be unreasonable to infer from that that they thought they had to reach the federal grounds?

Bruce J. Ennis, Jr.:

Your Honor, I do not think that it would be reasonable to infer from that fact that–

Ordinarily, the states’ highest courts, and particularly this one, in my observation, goes out of its way to avoid a remand, and put it on state grounds, if they can do it.

Bruce J. Ennis, Jr.:

–Your Honor, I can’t second guess the thinking behind the Michigan Supreme Court’s majority opinion.

I can say that the Court of Appeals in Michigan is a single court of appeals which has jurisdiction over the entire state.

That court has ruled on state law grounds that the evidence in this case must be excluded.

Well, what do you do with Justice Williams’ dissent at Appendix 27, where it says, after his name, “for reversal”?

I would assume from that that he thought that if his principles were accepted by the majority of the Supreme Court of Michigan, the judgment of the Court of Appeals would have been reversed.

Bruce J. Ennis, Jr.:

Well, let me be candid, Your Honor.

The case hinges on a Michigan case called People v. Davenport and it is true that the minority of the Michigan Supreme Court thought that the Court of Appeals and the trial court had misinterpreted that People v. Davenport case, but the majority did not go along with that view.

They expressed no view whatsoever on the point.

It can be said, however, that in the majority of the Michigan Supreme Court was Mr. Justice Levin, who, while he was on the Court of Appeals, was the author of the People v. Davenport opinion.

At the very least, at the very least, if there is some ambiguity about what the Michigan Supreme Court would rule on these state law grounds, it certainly cannot be said by this Court that Michigan law would authorize the detention and search in the circumstances of this case.

Now, given what Mr. Justice Jackson said for the Court in Herb v. Pitcairn, that the Court from the time of its foundation has adhered to the principle that it will not review judgements of state courts that rest on adequate and independent state grounds if the same judgement would be rendered by the state courts after we corrected its views of federal laws–

Mr. Ennis, supposing we sent it back and the Michigan Supreme Court said, we don’t care to decide the Michigan view, we think that federal law requires this result.

We decided the case on that ground, that’s our opinion, and we’re not going to say anything about state law.

They can’t make us say anything about state law.

How can we tell them to decide it on state law grounds?

Bruce J. Ennis, Jr.:

–Your Honor, this Court cannot force the Michigan Supreme Court to decide the case on state law grounds.

So if we dismiss the writ as improvidently granted, its judgment will stand and it will stand on federal grounds.

Bruce J. Ennis, Jr.:

Your Honor, what could happen in that circumstance is it could go back to the Michigan Supreme Court and they could decide to decide the case on the state law grounds for which they originally granted leave to appeal.

If we find that this writ is improvidently granted, that would be the end of the line.

It wouldn’t go back to the Michigan Supreme Court.

What do you–

Bruce J. Ennis, Jr.:

Well, that’s why I suggested, Your Honor, that an alternative method of proceeding would be as this Court did in Krivda, to vacate and remand to the Supreme Court of Michigan for clarification.

–But on your submission, Mr. Ennis, every case that comes to us from the highest court of a state placing it openly on federal grounds and on federal grounds and on no state grounds would then lead us, if not require us, to remand to say, isn’t there a state ground on which you can reach this result?

Bruce J. Ennis, Jr.:

Your Honor, I think not, because I’m not arguing for the purely speculative possibility that there might be a state law ground.

This case is unique from all the previous cases I am aware of in this Court on adequate state law ground issues in that both the trial court and the Court of Appeals did expressly rule on state law grounds, so it is not speculative to suggest that there might be a state law ground.

In fact, there has been a ruling that there is.

Are those judgments before us?

Bruce J. Ennis, Jr.:

Pardon me, Your Honor?

Are those judgments before us?

Bruce J. Ennis, Jr.:

Which judgments, Your Honor?

The lower court judgments?

Bruce J. Ennis, Jr.:

No, they are not directly before the Court.

Doesn’t that solve the problem?

We can only pass on one.

Bruce J. Ennis, Jr.:

Your Honor, I think–

And the one that we have before us, would you agree that the court went out of its way to point out that they were ruling on federal and not state grounds?

Bruce J. Ennis, Jr.:

–It is certainly true.

And if that’s true, why send it back and say, is that what you were doing?

Bruce J. Ennis, Jr.:

Well, let me say this, Your Honor.

Even if there would be no jurisdictional bar to this Court entertaining the case, as I think there is, there is a very strong policy reason under Ashwander for this Court not to grant cert in the circumstances of this case, because it may not be necessary to resolve these very difficult and important federal constitutional questions in order for the same judgment to stand on state law grounds.

In those circumstances I think it is at least appropriate to vacate and remand to the state court for clarification.

In that connection, let me point out something that is not mentioned in my amicus brief, and that is that Michigan has since 1919 adopted its own state exclusionary rule, immediately after Weeks, and in People v. Beavers… decided 393 Michigan 554… the Michigan Supreme Court ruled that they will apply their state exclusionary rule even in circumstances where the Fourth Amendment and the federal exclusionary rule do not require exclusion of the evidence.

But the Supreme Court of Michigan didn’t do that here.

And in Zucchini, which we decided two or three years ago, which came up in the Supreme Court of Ohio, we said that there may be adequate state grounds for it, but the Ohio Court placed it on federal grounds, and we will decide the federal question so that the state court will feel free to decide it under state law, knowing there is no federal impediment.

Bruce J. Ennis, Jr.:

That’s correct, Your Honor.

I think that’s slightly different in that the question there is whether the state court acted under what it believed to be the compulsion of overriding federal law.

That is not the case here.

In fact, the case law in Michigan, if you will look into it, indicates that the Michigan courts apply under their own Fourth Amendment principles, give more protection to defendants than would probably be required by the Fourth Amendment, and they also apply a state exclusionary rule that excludes evidence that would not have to be excluded under the federal exclusionary rule.

Bruce J. Ennis, Jr.:

They are not acting under compulsion of federal law by being more protective of individual rights.

But why didn’t they do it here?

Bruce J. Ennis, Jr.:

Your Honor, I don’t know, and that’s why I think, given the two lower court decisions so that it’s not just speculative possibility that it could be done, it would certainly be consistent with Ashwander for this Court to vacate and remand for clarification.

Where does this suggestion of yours stop?

Every time there’s a decision rested, rested affirmatively on a federal ground, what are we to do?

Vacate and send back to a state court and say, now, look, maybe you could have rested this on a state ground and until you tell us you can’t we’re not going to deal with the federal question?

Does it go that far?

Bruce J. Ennis, Jr.:

No, it does not go that far, Your Honor.

Let me suggest some limiting principles.

First, I would not suggest that the Court should vacate and remand whenever there is simply a speculative possibility that a state law ground might be adequate and independent.

I am only suggesting in the unique circumstances of this case where the trial court and the Court of Appeals have ruled that there is such state law.

Have we had anything like this before, where it was suggested–

Bruce J. Ennis, Jr.:

Never before that I am aware of, Your Honor.

I believe this case is unique, so far as I’ve been able to determine.

–But as Justice Marshall suggested to you, is not the fact that two lower state courts decided on other grounds make it more apparent that the Supreme Court of Michigan went out of its way to put it on federal grounds and to reject the state grounds?

Bruce J. Ennis, Jr.:

Your Honor, I don’t know.

It may be that the Michigan Supreme Court decided simply to discuss these questions in chronological order, and the first issue that comes up is the legality of the detention.

It may be that was the sole basis of why they addressed the detention issue rather than the subsequent state law issues that were found dispositive in the lower courts.

I think in those circumstances a remand would be appropriate.

You said you did not want to get into the facts, but let me put this hypothetical to you that I put to your colleague.

Suppose a warrant were to search for machine guns and hand grenades that were about to be sent to the IRA in Ireland, and they send a team of seven or eight officers out, adequately prepared for that.

Then do you think they may not detain the man at the door?

Bruce J. Ennis, Jr.:

Well, Your Honor, I believe that the answer to that question can probably be resolved under existing law, under Terry v. Ohio.

Obviously, as you are aware, Your Honor, Terry does permit a pat down for weapons in circumstances where the police have reasonable suspicion to believe that a person might be armed and dangerous, even if they do not have probable cause to detain for a lengthy period of time or to arrest.

The interesting point here is that the Michigan Supreme Court did not even consider whether Terry, existing law, would have authorized that kind of a search involved in this case, because it went off on the quite different ground, under Dunaway, that there could be no detention whatsoever.

That, I think, is an additional reason why cert should be dismissed as improvidently granted, if the Court decides to reach that question, since that particular question, the scope of Terry in the circumstances of this case, has never been considered by the Michigan Supreme Court.

Again, I do appreciate the permission to argue as amicus.

Thank you very much.

Timothy A. Baughman:

If it please the Court, I’d just like to take a moment to again emphasize the distinction in our ground on the detention issue.

We see this, as I said, as a warrants case.

Timothy A. Baughman:

We believe that respondent, that persons on the premises or departing from the premises where a warrant is going to be executed may be detained while the warrant is executed regardless of any individualized, particularized, Terry-type suspicion that that person is engaged in criminal activity.

There may have been such a suspicion as to Mr. Summers.

There probably was not such a suspicion as to the other six people in the house other than Mr. Calhoun.

We submit that they could all be detained under the authority of the warrant.

There was a “George” named by the informant, by the affiant.

Timothy A. Baughman:

That’s correct.


The warrant didn’t authorize any search or seizure of George, did it?

Timothy A. Baughman:

No, it did not.

And was George ever found?

Timothy A. Baughman:

Well, there’s… the record does not indicate whether George Summers is the George or whether someone else is the George.

The record does not state one way or the other.

He’s not involved now?

Timothy A. Baughman:

Well, it depends on whether George Summers is the George and we don’t know that.

We just… I can’t say whether he is–

Well, you do know this is the only George of the search, don’t you?

Timothy A. Baughman:

–That’s correct.

Well, people in that business don’t usually give their right names.

Timothy A. Baughman:

That’s correct.

But the warrant, in any event, didn’t authorize any search or seizure of any person, George or anybody else?

Timothy A. Baughman:


Of course, it’s our position that it authorized the search of… of anyone, but not… didn’t specifically name anybody.


Timothy A. Baughman:

That’s correct.

We believe that it is an error to view the permissible scope of Fourth Amendment detentions as only existing in a criminal context somewhere between reasonable suspicion and probable cause.

Reasonable detentions may occur without any particularized suspicion as to any individual, as this Court has held in border cases.

For example, in material witness cases.

People can be held against their wills to be witnesses in cases.

Those detentions are without probable cause and reasonable suspicion, or anything that those persons are involved in criminal activity, but they’re reasonable under the Fourth Amendment.

I believe they do fall under the Fourth Amendment because of the governmental interest involved.

Timothy A. Baughman:

We are submitting that there is a class of detentions here of persons on or departing from the premises that is reasonable, to insure the full and faithful execution of the warrant, without regard to individualized suspicion as to criminal activity by that person.

And it’s on that ground that we’re asking this Court to hold that that detention, the detention of respondent when he was brought in the house, was constitutional.

I thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until Monday next at ten o’clock [= 10:00].