Presence Or Absence of Persons When Search Warrant Is Executed

• Jurisdiction: Maryland

XI. Presence or absence of persons when search warrant is executed

A. Owner or occupier of searched premises not present

The owner or occupier of searched premises need not be present when a search warrant is executed. Kraft v. State, 19 Md. App. 108, 109-10 (1973).

B. Persons present at the time of the search

1. Detaining occupants permissible during a valid search

In Summers, 452 U.S. at 702-04, the Supreme Court held that police did not violate the Fourth Amendment when they detained the home owner while executing a valid search warrant in his home. The detained "occupant" must be a resident, and the object of the warrant must be fruits and/or instrumentalities of a crime, and not mere evidence of a crime. In Los Angeles County v. Rettele, 550 U.S. 609, 614 (2007) (per curiam), the Supreme Court held that the executing officers may take reasonable action to secure the premises and ensure their safety and that of others. See Muehler v. Mena, 544 U.S. 93, 98-100 (2005) (authority to detain occupants during a search does not depend on proof or extent of intrusion).

In Bailey v. United States, 133 S. Ct. 1031, 1036 (2013), police obtained a search warrant for the defendant's apartment and observed, prior to executing the warrant, the defendant and another man leave the apartment and drive away. Police stopped the defendant, handcuffed him, and brought him back to his apartment. Id. The court held that seizure of the defendant was permissible under Summers. Id. at 1037. The Supreme Court reversed.

The Court stated that "[a]n exception to the Fourth Amendment rule prohibiting detention absent probable cause must not diverge from its purpose and rationale." Id. at 1038. To "justify the detention of an occupant who is on the premises during the execution of a search warrant," that detention must be justified by the rationale of Summers for "officer safety, facilitating the completion of the search, [or] preventing flight." Id. The Court held that none of these justifications for stopping the defendant was present. As for officer safety, the Court stated:

It is . . . [ inevitable] that an occupant will return to the premises at some point; and this might occur when the officers are still conducting a search. Officers can and do mitigate the risk, however, by taking routine precautions, for instance by erecting barricades or posting someone on the perimeter or at the door. In the instant case, [the defendant] had left the premises, apparently without knowledge of the search. He posed little risk to the officers at the scene. If [the defendant] had rushed back to his apartment, the police

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