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

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.

new york police department lacked probable cause to arrest fulton street protesters during 2004 republican national convention

In an opinion filed yesterday, U.S. District Judge Richard Sullivan found that the NYPD did not have probable cause to arrest Republican National Convention (RNC) protesters on Fulton Street on August 31, 2004. He based this conclusion on the rule of individualized probable cause:

An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.

Judge Sullivan could not determine, however, whether police had probable cause to arrest people the same day on East 16th Street. While the Fulton Street protesters had no opportunity to comply with the “so-called dispersal order,” if they even heard it, many individuals on East 16th Street “were openly and consciously violating the law” – obstructing the sidewalk or parading without a permit. Sullivan found that questions remained regarding whether police reasonably believed that bystanders on East 16th Street had “sufficient notice and opportunity to leave the area and that only lawbreakers remained.”

Finally, Sullivan considered the fingerprinting policy adopted during the RNC and the City’s suspension of its policy of issuing summonses for traffic-level offenses. He concluded that the fingerprinting policy, which required fingerprinting of everyone arrested for RNC-related criminal activity, violated New York state law, and that the plaintiffs could bring a claim pursuant to that law. Yet as to the no-summons policy, he found it to be justified “as a check to serial protestors who might otherwise engage in repeat acts of disobedience designed to grind the City to a halt.”