Warrants to Search either persons or property, consistent with the 4th Amendment, must be predicated on Probable Cause.
Some limited authority exists for law enforcement to temporarily detain occupants of the premises to be searched subject to the warrant.
Such detainment must be limited to the area where an occupant may pose a real threat to the efficient and safe execution of the search warrant.
The nature and extent of the scope of the detention incident to a search warrant is confined to the underlying justification of the warrant to search for contraband – John Fanney, Raleigh Lawyer
At such time as an “occupant” is no longer in the immediate vicinity of the premises to be searched, the law enforcement interests related to executing the search warrant are diminished.
Further extension of the detention outside that scope is, therefore, more severe (intrusive) and may be prohibited under the 4th amendment of the Constitution.
North Carolina Criminal Law – Detainment
In 2018 the North Carolina Supreme Court considered Michigan v. Summers in determining the appropriateness of detaining people while law enforcement executes Search Warrants.
Criminal Defense lawyers may refer to it as the “Who, Where, and When” analysis as set forth in North Carolina v. Wilson, 371 N.C. 920 (2018). (State v. Wilson)
Limited authority to detain applies to:
- Within the immediate vicinity of the premises subject to the Search Warrant
- Present at the time of search pursuant to the execution of the Warrant to Search
An “occupant,” relative to the U.S. Supreme Court Summers Rule is someone who poses a real threat to the efficient and safe execution of the Warrant to Search.
The legal analysis considers whether the detained party is a real threat, not whether he or she could have possibly posed a threat to the safety of law enforcement or imposed upon an efficient search by law enforcement.
Application of the Summers Rule
Consistent with State v. Wilson, it is important to distinguish between the first two prongs of the USSC Summers Rule.
The presence of an individual within the immediate area or vicinity to be searched does not automatically mean they pose a threat to law enforcement or the efficient execution a search warrant – John Fanney, Criminal Defense Lawyer Raleigh NC
Focusing on or giving excessive attention to the proximity to the accused to the area to be searched, and who police may detain, risks conflating the “Who” and “Where” as set forth in Wilson.
Our Supreme Court protects against the detention of hapless individuals who may be in the immediate vicinity and but not necessarily within the premises.
Detain and Frisk
The criminal history of the defendant, standing alone, does not authorize law enforcement to conduct hey Terry stop and frisk.
Ordinarily, searches and seizures must be predicated on Probable Cause. Certain exceptions under the law exist, including for the purpose of officer safety.
Terry Frisks are authorized when, through the Personal Observations of the Officer, there exists Reasonable Suspicion that “Criminal Activity Afoot” and further that the person to be “frisked” may be armed.
The personal observations of the officer suggest the accused may be armed. As such, the officer may briefly detain and frisk that person for self-protection.
A prior criminal record or history, does not in-and-of-itself create a reasonable suspicion of criminal activity.
Whether there exists Reasonable Suspicion that criminal activity is afoot cannot be founded on prior criminal activity in the past.
Raleigh Criminal Defense Lawyer – John Fanney
Search and Seizure issues, and the constitutional protections against 4th Amendment violations, deserve careful analysis of the fact pattern of the case.
The NC Criminal Laws allow for reasonableness, both for the safety of law enforcement and to prevent unnecessary intrusion on Constitutional Rights –John Fanney, Wake County Criminal Defense Lawyers
Warrants to Search persons and premises must be undergirded by Probable Cause.
In executing the same, law enforcement may briefly detain “occupants” of the premises. In certain circumstances, that may also involve a pat-down search for officer safety.
If you have legal questions about the legality of a Search Warrant and/or whether you may be “detained” for any period of time consistent with its execution, call Raleigh Criminal Defense Lawyer John Fanney.
Police have a job to do; as criminal defense lawyers, so do we. We’re dedicated to protecting legal rights under the Constitution – John Fanney, Criminal Lawyers in Wake County NC