Section 9.36 Other Detentions and Searches Based on Safety Needs

• Library: Criminal Practice 2012 Supp

5. (§9.36) Other Detentions and Searches Based on Safety Needs

When the police have a warrant to search, they may detain the owner/occupant of the premises during the course of that search to protect themselves from danger and to facilitate the search. Mich. v. Summers, 452 U.S. 692, 705 (1981). In State v. Sutherland, 859 S.W.2d 801, 804 (Mo. App. E.D. 1993), the court held that a “warrant to search for contraband founded upon probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” See also Summers, 452 U.S. at 705. Application of the Summers exception requires a warrant (or in some cases exigent circumstances, Summers, 452 U.S. at 702, n.17) and reason to believe the person to be detained is an occupant of the premises to be searched. Sutherland, 859 S.W.2d at 804–05. The “authority to detain incident to a search is categorical” and does not depend on a showing of specific need. Muehler v. Mena, 125 S. Ct. 1465, 1470 (2005).

Summers permits an occupant who is found in close proximity to be brought back to the premises for the duration of the search. Summers, 452 U.S. at 702, n.16 (defendant on steps leaving home); see also Sutherland, 859 S.W.2d at 804–05 (defendant in hallway outside hotel room). Similarly, the police may detain an occupant outside the occupant’s home and prevent...