supreme court circumscribes police authority to detain people when conducting a search

by Tim Phillips

Police can detain and pat down people while they execute a search warrant, even absent individualized probable cause or reasonable suspicion. Yet can they detain people who live on the premises but aren’t present? Today the U.S. Supreme Court clarified that the authority to detain people during the execution of a search warrant is limited to people who are in the “immediate vicinity” of the premises to be searched.

The court didn’t define the “immediate vicinity” of the premises, but a number of factors are relevant in determining whether someone is in the “immediate vicinity.” Examples include the premises’ limits, whether the person is in the line of sight of his or her dwelling, and the ease of re-entry from where the person is located.

If police arrive with a search warrant, the best practice for activists in the “immediate vicinity” is to step outside of the house or building, close the door behind you, state that you don’t consent to a search, and ask to see the warrant. It should contain the correct address and apartment number, if applicable. The date generally should not be older than two weeks. In addition, the warrant should be signed by a judge or magistrate. If the warrant seems invalid, you should direct the officers’ attention to the defect and reiterate that you don’t consent to a search. Then say the magic words:

I’m going to remain silent. I would like to see a lawyer.