Search and Seizure Cases in the
October 2012 Term of the Supreme Court
Charles Doyle
Senior Specialist in American Public Law
September 4, 2012
Congressional Research Service
7-5700
www.crs.gov
R42697
CRS Report for Congress
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epared for Members and Committees of Congress
Search and Seizure Cases in the October 2012 Term of the Supreme Court
Summary
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized. U.S. Const. Amend. IV.
This term, the Supreme Court considers whether (1) deploying a drug-detecting dog at the front
door of a house qualifies as a Fourth Amendment search (Florida v. Jardines); (2) the positive
reaction of a trained, drug-detecting dog constitutes probable cause per se (Florida v. Harris); and
(3) the rationale which permits the warrantless, suspicionless detention of individuals found in a
place covered by a search warrant also permits the warrantless, suspicionless off-site
apprehension and return of individuals who have recently left a place covered by a search warrant
(Bailey v. United States).
The Supreme Court has said in the past that walking a drug-detecting dog around a car pulled
over on the highway or around luggage in an airport is not a Fourth Amendment search. The
Florida Supreme Court in Jardines held that bringing a drug-detecting dog with an accompanying
police entourage to a house and walking the dog around the porch of the house qualifies as a
Fourth Amendment search permissible only with probable cause.
Probable cause exists when there is a fair probability that contraband or evidence of a crime will
be found in the place to be searched. The Supreme Court has held that informers’ tips, used to
establish probable cause, need not be subjected to uniform, rigid reliability standards. The Florida
Supreme Court in Harris held that the prosecution had not established the existence of probable
cause because it had failed to satisfy court-mandated standards for the reliability of drug-
detecting dogs and their handlers.
In order to minimize the risk of harm to the officers, the destruction of evidence, or the flight of
suspects, officers executing a search warrant for contraband may detain individuals found on the
premises to be searched. They may do so though they have no probable cause to arrest the
individuals. The United States Court of Appeals for the Second Circuit in Bailey held that officers
enjoy a similar prerogative with respect to individuals whom they allow to leave the premises
before apprehending them off-site and returning them to the site of the search.
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Contents
Introduction...................................................................................................................................... 1
Florida v. Jardines ........................................................................................................................... 1
Background................................................................................................................................ 1
Supreme Court Precedent .......................................................................................................... 2
Florida Supreme Court .............................................................................................................. 3
Florida v. Harris .............................................................................................................................. 5
Background................................................................................................................................ 5
Supreme Court Precedent and Later Case Law ......................................................................... 5
Florida Supreme Court .............................................................................................................. 7
Bailey v. United States ..................................................................................................................... 8
Background................................................................................................................................ 9
Supreme Court Precedent and Later Case Law ......................................................................... 9
Second Circuit ......................................................................................................................... 11
Contacts
Author Contact Information........................................................................................................... 12
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Search and Seizure Cases in the October 2012 Term of the Supreme Court
Introduction
The Supreme Court has agreed to hear three search and seizure cases during its October 2012
term. One involves the question of “[w]hether a trained narcotics-detection dog’s sniff at the front
door of a suspected [marijuana] grow house is a Fourth Amendment search,” Florida v. Jardines
(Doc. No. 11-564). A second relates to whether an alert by a trained drug-detection dog is
sufficient to establish probable cause for a search of a vehicle, Florida v. Harris (Doc. No. 11-
817). A third concerns the question of whether “the detention of an individual who has just left
premises to be searched under warrant is permissible when the individual is detained out of view
of the house as soon as possible,” Bailey v. United States (Doc. No. 11-770).
Florida v. Jardines
Is a dog sniff at the front door of a suspected grow house by a trained narcotics-detection dog
a Fourth Amendment search requiring probable cause?
Last term, five members of the Court declared that a Fourth Amendment “search” occurs when
“the Government obtains information by physically intruding on a constitutionally protected
area.”1 This term, the Court has agreed to consider whether a search occurs when the police
obtain information in an enterprise that culminates with the performance of a drug-sniffing dog
on the front porch of a private house.2 An affirmative answer would constitute something of a
departure from the Court’s past treatment of dog sniffing cases.3
Background
On November 3, 2006, Miami-Dade Police received an unverified “crime stoppers” tip that
Jardines was growing marijuana in his house.4 A month later, as part of an elaborate multi-agency
enterprise, authorities descended on Jardines’s house at dawn. They saw no activity in the house.
The blinds were drawn. The driveway was empty. The air conditioning was running. An officer
and a trained drug-sniffing dog entered the front porch, where the dog “alerted” for the presence
of drugs, most emphatically at the front door. A second officer then stepped to the front door to
conduct a “knock and talk.”5 He received no response, but detected the smell of marijuana. He
1 United States v. Jones, 132 S.Ct. 945, 950 n.3 (2012); id. at 923 (Sotomayor, J., concurring).
2 Jardines v. State, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S.Ct. 995 (2012).
3 See e.g., Illinois v. Caballes, 543 U.S. 405 (2005); Indianapolis v. Edmond, 531 U.S. 32 (2000); United States v.
Place, 462 U.S. 696 (1983).
4 The information in this paragraph was gathered from Jardines v. State, 73 So.3d at 37-8.
5 The courts recognize a “knock and talk” exception to the Fourth Amendment’s warrant requirement under which law
enforcement officers may enter the curtilage of home for the limited purpose of speaking to any occupant who responds
to the knock, e.g., Kentucky v. King, 131 S.Ct. 1849, 1862 (2011); United States v. Robbins, 682 F.3d 1111, 1115-116
(8th Cir. 2012); United States v. Perea-Rey, 680 F.3d 1179, 1187-188 (9th Cir. 2012). Moreover, the Supreme Court has
limited the extent to which the federal courts may find a Fourth Amendment violation when they believed law
enforcement officials had used the knock and talk exception as a pretext to stimulate exigent circumstances (flight or
the destruction of evidence) in order to circumvent the warrant requirement, United States v. Aguirre, 664 F.3d 606,
611 n.13 (5th Cir. 2011)(some internal citations omitted)(“Heretofore, we would precede this discussion by analyzing
the threshold issue of whether the law enforcement officers’ decision to conduct a knock and talk was a reasonable
investigatory tactic, or whether it impermissibly provoked the exigent circumstance. If we determined that the officers
(continued...)
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used the dog’s reaction and his own observations to obtain a search warrant. A subsequent search
turned up marijuana growing in the house.
On appeal, the Florida district court overturned the trial court’s suppression of the evidence seized
at Jardines’s house.6 The Florida Supreme Court in turn reversed the district court’s decision,
concluding that the dog’s use under the circumstances constituted a warrantless search.7 It also
endorsed the trial court’s determination that without the dog-sniffing evidence, authorities had
presented insufficient evidence to establish the probable cause necessary for issuance of the
search warrant.8
Supreme Court Precedent
Drug-sniffing dogs first appear in the Court’s jurisprudence in Place.9 There, federal agents,
suspicious of Place’s conduct when he arrived in New York on a flight from Miami, stopped him,
questioned him, and seized his luggage. A trained dog eventually alerted to the presence of drugs
in one of the bags. Place sought to suppress evidence found in the bag. The Court concluded that
the 90-minute delay between when the luggage was seized and when it was sniffed by the dog
exceeded the delay permissible under Terry for detention of the luggage detained solely on
reasonable suspicion.10 In doing so, however, the Court observed that “the particular course of
investigation that the agents intended to pursue here—exposure of respondent’s luggage, which
was located in a public place, to a trained canine—did not constitute a ‘search’ within the
meaning of the Fourth Amendment.”11
Again in Edmond, the use of dogs was not an issue.12 But again, the Court noted in passing that
use of drug-sniffing dogs in a public area was something less than a typical Fourth Amendment
search. Edmond objected to the City’s suspicionless drug checkpoint program that had ensnarled
him. The program featured a drug-sniffing dog walking around each of the cars stopped at the
checkpoint. The Court held the drug-interdiction, law enforcement purpose precluded the
program’s claim to the “special needs” exception necessary to excuse the checkpoint seizures
without either probable cause or a warrant.13 In the course of its opinion, the Court pointed out
that “[i]t is well established that a vehicle stop at a highway checkpoint effectuates a seizure
within the meaning of the Fourth Amendment. The fact that officers walk a narcotics-detection
(...continued)
could have obtained a warrant in lieu of conducting the knock and talk or that it was reasonably foreseeable that the
knock and talk would create an exigent circumstance, we would not allow the government to use the exigent
circumstance doctrine to justify the officers’ entry and bypass the warrant requirement. However, this inquiry is no
longer proper after the United States Supreme Court’s decision in Kentucky v. King, 131 S.Ct. 1849 (2011). That
decision narrowed the police-created exigency doctrine adopted by this and other circuits, holding that it may apply
only so long as ‘the police did not create the exigency by engaging or threatening to engage in conduct that violates the
Fourth Amendment’”).
6 State v. Jardines, 9 So.3d 1 (Fla. App. 3d 2008).
7 Jardines v. State, 73 So.3d at 55-6.
8 Id. at 54-5.
9 United States v. Place, 462 U.S. 696 (1983).
10 Id. at 710.
11 Id. at 707.
12 Indianapolis v. Edmond, 531 U.S. 32 (2000).
13 Id. at 48.
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dog around the exterior of each car ... does not transform the seizure into a search, see United
States v. Place.” Nevertheless, the Court went out of its way to emphasize that the case was not
about the use of dogs: “The Chief Justice’s dissent also erroneously characterizes our opinion as
holding that the ‘use of a drug-sniffing dog ... annuls what is otherwise plainly constitutional
under our Fourth Amendment jurisprudence.’ Again, the constitutional defect of the program is
that its primary purpose is to advance the general interest in crime control.”14
In Caballes, the dog sniff was the issue, that is, “[w]hether the Fourth Amendment requires
reasonable, articulable suspicion to justify using a drug-detecting dog to sniff a vehicle during a
legitimate traffic stop.”15 The Court said no: “A dog sniff conducted during a concededly lawful
traffic stop that reveals no information other than the location of a substance that no individual
has any right to possess does not violate the Fourth Amendment.”16 The proposition that the use
of a dog, trained to detect drugs, carries no Fourth Amendment implications would seem bode ill
for Jardines’s claim.
Florida Supreme Court
The Florida Supreme Court held that the use of a drug-sniffing dog on Jardines’s front porch
constituted a search and that such a search required probable cause before it could be conducted.17
The court distinguished the case at hand from the United States Supreme Court precedents on
several grounds.
It noted that the sniff tests conducted in Place, Edmond, and Caballes were all conducted in a
“minimally intrusive manner upon objects ... that warrant no special protection.”18 The Jardines
sniff test was a “public spectacle” conducted at a private home, an area entitled to the highest
level of Fourth Amendment protection.19
Then, the court pointed out that “[a]ll the tests were conducted in an impersonal manner that
subjected the defendants to no untoward level of public opprobrium, humiliation or
embarrassment.”20 The Jardines sniff test involved the presence of multiple police vehicles and
many officers that produced a spectacle “in a residential neighborhood [that would] invariably
entail a degree of public opprobrium, humiliation and embarrassment for the resident ... for such
dramatic government activity in the eyes of many—neighbors, passers-by, and the public at
large—[would] be viewed as an official accusation of crime.”21
14 Id. at 44 n.1.
15 Illinois v. Caballes, 543 U.S. 405, 407 (2005).
16 Id. at 410.
17 Jardines v. State, 73 So.3d 34, 54, 55 (Fla. 2011)(“Accordingly, we conclude that probable cause, not reasonable
suspicion, is the proper evidentiary showing of wrongdoing that the government must make under the Fourth
Amendment prior to conducting a dog ‘sniff test’ at a private residence.... Given the special status accorded a citizen’s
home in Anglo-American jurisprudence, we hold that the warrantless ‘sniff test’ that was conducted at the front door of
the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated
the Fourth Amendment”).
18 Id. at 45.
19 Id. at 48.
20 Id. at 45.
21 Id. at 48.
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Finally, the court emphasized that the Place, Edmond, and Caballes tests were conducted under
circumstances in which they “were not susceptible to being employed in a discriminatory or
arbitrary manner.”22 In contrast, “if government agents can conduct a dog ‘sniff test’ at a private
residence without any prior evidentiary showing of wrongdoing, there is simply nothing to
prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based
on whim and fancy, at the home of any citizen.”23
The concurring justices offered another factor: “the lack of a uniform system of training and
certification for drug-detection canines ... [:] conditioning and certification programs vary widely
in their methods, elements, and tolerances of failure ... [; and] dogs themselves vary in their
abilities to accept, retain, or abide by their conditioning in widely varying environments and
circumstances.”24
In the absence of exigent circumstances or non-law enforcement special needs, the court
concluded that the dog sniff searches such as the one that occurred in Jardines may only be
conducted on the basis of probable cause.25
The dissenters contended that the majority opinion flew in the face of binding United States
Supreme precedent.26 Beyond Place, Edmond, and Caballes, they mention the Court’s
observation in Kyllo to the effect that “‘a Fourth Amendment search does not occur—even when
the explicitly protected location of a house is concerned—unless the individual manifested a
subjective expectation of privacy in the object of the challenged search and society is will to
recognize that expectation as reasonable.’”27 Couple this with the Court’s statement “that
government conduct that only reveals the possession of contraband compromises no legitimate
privacy interest,” and the position of the majority opinion becomes untenable, the dissenters
suggested.28
The justices of the Florida Supreme Court, however, did not have the advantage of the United
States Supreme Court’s Jones decision. There, a majority of the Court made clear that a Fourth
Amendment search occurs whenever the government physically intrudes upon constitutionally
protected property.29 The “expectation of privacy” concept, born of Katz, supplements, it does not
condition, the traditional protection of the Amendment.30
22 Id. at 45.
23 Id. at 49.
24 Id. at 60 (Lewis, J., with Pariente and Labarga, JJ. concurring).
25 Id. at 54 (“Accordingly, we conclude that probable cause, not reasonable suspicion, is the proper evidentiary showing
of wrongdoing that the government must make under the Fourth Amendment prior to conducting a dog ‘sniff test’ at a
private residence”).
26 Id. at 61 (Polston, J., with Canady, Ch. J. dissenting).
27 Id. at 64, quoting, Kyllo v. United States, 533 U.S. 27, 33 (2001).
28 Id. at 67-8, quoting, Illinois v. Caballes, 545 U.S. 405, 408 (2005).
29 More precisely, where “the Government obtains information by physically intruding on a constitutionally protected
area, such a [Fourth Amendment] search has undoubtedly occurred,” United States v. Jones, 132 S.Ct. 945, 950 n.3
(2012); id. at 923 (Sotomayor, J., concurring).
30 “[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law
trespassory test,” id. at 952.
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The United States Supreme Court may have had its pending Jones decision in mind when it
agreed to hear Jardines.31 If so, it remains to be seen whether it intended to further develop the
theme sounded in Jones or to prevent Jones from being read too broadly.
Florida v. Harris
Has the Florida Supreme Court decided an important question in a way that conflicts with
established Fourth Amendment precedent of the U.S. Supreme Court by holding that an alert
by a well-trained narcotics-detection dog certified to detect illegal contraband is insufficient
to establish probable cause to search a vehicle?
The Florida Supreme Court’s Jardines decision is perhaps not surprising in light of its earlier
decision in Harris.32 It refused to accept a trained drug-detection dog’s positive reaction as per se
probable cause in Harris. Instead, it listed a host of criteria under which a trained dog’s alert
might be considered probable cause. Neither the per se standard nor the Florida court’s list seem
consistent with the “totality of the circumstances” standard that the United States Supreme Court
has favored heretofore.
Background
A canine officer pulled Harris’s truck over for a traffic violation.33 His trained dog alerted to the
presence of narcotics. A search of the truck, however, did not yield the drugs the dog had been
trained to detect. Nevertheless, it did lead to the discovery of precursor chemicals. Two months
later, the same canine team again pulled Harris over for a traffic violation with the same result.
The dog reacted positively to the presence of drugs, but none were found. The trial court denied
Harris’s motion to suppress the evidence seized following the first search. The district court
affirmed.34 The Florida Supreme Court reversed, holding that “the fact that a drug-detection dog
has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate
the reliability of the dog” and thereby establish probable cause to conduct a search.35
Supreme Court Precedent and Later Case Law
Probable cause to believe that the search will reveal contraband or evidence of a crime is a
prerequisite for the issuance of a search warrant.36 And probable cause permits police to search a
car or truck without a warrant.37 Probable cause exists when “there is a fair probability that
31 The final slip opinions were back from the Public Printer and the Court announced its decision in Jones on January
23, 2012, id. The Court granted certiorari in Jardines on January 6, 2012, 132 S.Ct. 995 (2012).
32 Harris v. State, 71 So.3d 756 (Fla. 2011).
33 The information in this paragraph was gathered from Harris v. State, 71 So.3d at 759-62.
34 Harris v. State, 989 So.2d 1214 (Fla.App. 1st 2008).
35 Harris v. State, 71 So.3d at 774-75.
36 U.S. Const. Amend. IV.
37 Carroll v. United States, 267 U.S. 132, 153 (1925); Maryland v. Dyson, 527 U.S. 465, 467 (1999).
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contraband or evidence of a crime will be found in a particular place.”38 Whether that standard
has been met is a common sense assessment of all of the circumstances in a particular case.39
At one point, the Court held that bare, conclusionary statements to a magistrate that officers had
reliable information from a credible source, without indicating why the tip was reliable or the
source credible, did not constitute probable cause.40 Shortly thereafter, the Court refused to find
probable cause to secure a warrant in a case in which the informant’s tip was offered without
evidence of the information’s reliability or of the tipster’s credibility, even in the presence of
some corroboration of the tip’s accuracy.41 The two cases, Aguilar and Spinelli, led some to
believe that an informant’s tip might serve as the basis for probable cause only with evidence of
the information’s reliability and tipster’s credibility.42 The Court found this too restrictive a test in
Illinois v. Gates. Better instead, it held, to rely upon a “totality of the circumstances” standard that
permits a common sense assessment of the individual facts presented in a particular case.43
Since Gates, the federal courts of appeals have usually held (1) that the positive reaction of a dog
trained to detect the presence of narcotics is sufficient to establish probable cause,44 but (2) that
this general rule applies only if the dog is reliable.45
38 Illinois v. Gates, 462 U.S. 213, 238 (1983).
39 Maryland v. Pringle, 540 U.S. 366, 370-71 (2003)(“[T]he probable cause standard is a practical, nontechnical
conception that deals with the factual and practical considerations everyday life on which reasonable and prudent men,
not legal technicians, act.... The probable-cause standard ... depends on the totality of the circumstances”).
40 Aguilar v. Texas, 378 U.S. 108, 113-16 (1964).
41 Spinelli v. United States, 393 U.S. 410, 415-16 (1969)(“A magistrate cannot be said to have properly discharged his
constitutional duty if he relies on an informer’s tip which – even when partially corroborated – is not as reliable as one
which passes Augilar’s requirements when standing alone”).
42 See e.g., Illinois v. Gates, 462 U.S. 213, 229-30 (1983)(internal citations omitted)(“The Illinois court, alluding to an
elaborate set of legal rules that have developed among various lower courts to enforce the ‘two-pronged test,’ found
that the test had not been satisfied. First, the ‘veracity’ prong was not satisfied because, ‘[there] was simply no basis
[for] [concluding] that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was
credible.’ The court indicated that corroboration by police of details contained in the letter might never satisfy the
‘veracity’ prong, and in any event, could not do so if, as in the present case, only ‘innocent’ details are corroborated. In
addition, the letter gave no indication of the basis of its writer’s knowledge of the Gateses’ activities. The Illinois court
understood Spinelli as permitting the detail contained in a tip to be used to infer that the informant had a reliable basis
for his statements, but it thought that the anonymous letter failed to provide sufficient detail to permit such an
inference. Thus, it concluded that no showing of probable cause had been made”).
43 Id. at 238-39(internal citations omitted)(“[W]e conclude that it is wiser to abandon the ‘two-pronged test’ established
by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that
traditionally has informed probable-cause determinations. The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including
the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to
ensure that the magistrate had a ‘substantial basis for ... [concluding]’ that probable cause existed. We are convinced
that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the
Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli”).
44 United States v. Zamora, 661 F.3d 200, 208 (5th Cir. 2011)(“Once the drug-sniffing dog alerted to the scent of
narcotics, the police had probable cause that the drugs were in the Navigator and therefore were authorized to search
the vehicle”); United States v. Bowman, 660 F.3d 338, 345 (8th Cir. 2011)(“Assuming that the dog is reliable, a dog
sniff resulting in an alert on a container, car, or other item, standing alone gives an officer probable cause to believe
that there are drugs present”); United States v. Kitchell, 653 F.3d 1206, 1222 (10th Cir. 2011)(“Mr. Shigermura points
to no authority undermining the well-established principle that positive alert from a reliable narcotics-detection dog
gives rise to probable cause to search a vehicle”); United States v. Pierce, 622 F.3d 209, 213 (3d Cir. 2010)(“[A] dog’s
positive alert while sniffing the exterior of the car provides an officer with the probable cause necessary to search the
car without a warrant”); United States v. Brown, 500 F.3d 48, 57 (1st Cir. 2007)(“[A] reliable canine sniff outside a
(continued...)
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Florida Supreme Court
The Florida Supreme Court concluded that in Harris the state had failed to show that, taking all
the circumstances into account, the alert of a trained dog to the door of a truck entitled an officer
to believe that there was a fair probability that the truck contained illicit drugs.46 The suppression
hearing featured apparently uncontradicted evidence that the dog had twice reacted positively to
the door of the truck when in fact the truck had none of the drugs the dog was trained to detect.47
The court did not feel that the state had offered sufficient evidence to explain away the factors
that might have contributed to such a result: false alerts attributable to environmental factors,
handler cuing or error, or the dog’s inability to distinguish between odors attributable to the
current presence of narcotics on the one hand, and residual odors attributable to the presence of
narcotics minutes, hours, days, or weeks earlier, on the other.48 It held that:
(...continued)
vehicle can provide probable cause to search the vehicle”); Hearn v. Board of Public Education, 191 F.3d 1329, 1333
(11th Cir. 1999)(“Furthermore, the alerting of a drug-sniffing dog to a person’s property supplies not only reasonable
suspicion, but probable cause to search that property”); United States v. Thomas, 87 F.3d 909, 912 (7th Cir.
1996)(“[O]nce the dog reacted positively for narcotics, the officers had probable cause to obtain a search warrant for
the suitcase.... ”).
45 United States v. Ludwig, 641 F.3d 1243, 1251 (10th Cir. 2011)(internal citations omitted)(“[I]t goes without saying
that a drug dog’s alert establishes probable cause only if that dog is reliable. But none of this means we mount a full-
scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its
reliability”); United States v. Bowman, 660 F.3d 338, 345 (8th Cir. 2011)(emphasis added)(“Assuming that the dog is
reliable, a dog sniff resulting in an alert on a container, car, or other item, standing alone gives an officer probable
cause to believe that there are drugs present”); United States v. Pierce, 622 F.3d 209, 213 (3d Cir. 2010)(“[A] dog’s
positive alert while sniffing the exterior of the car provides an officer with the probable cause necessary to search the
car without a warrant”); United States v. Howard, 621 F.3d 433, 447 (6th Cir. 2010)(emphasis added)(“A positive
indication by a properly-trained dog is sufficient to establish probable cause for the presence of a controlled
substance”); United States v. Brown, 500 F.3d 48, 57 (1st Cir. 2007)(emphasis added)(“[A] reliable canine sniff outside
a vehicle can provide probable cause to search the vehicle”); cf., United States v. Stubblefield, 682 F.3d 502, 506 (6th
Cir. 2012)(internal citations omitted)(“We uphold a district court’s findings regarding the training and reliability of a
drug-detection dog unless those findings are clearly erroneous. A dog’s training and reliability can be established by the
testimony of the dog’s handler alone. If the evidence adduced, ‘whether testimony from the dog’s trainer or records of
the dog’s training, establishes that the dog is generally certified as a drug-detection dog, any other evidence, including
the testimony of other experts, that may detract from the reliability of the dog’s performance properly goes to the
‘credibility’ of the dog. Lack of additional evidence, such as documentation of the exact course of training, similarly
would affect the dog’s reliability. As with the admissibility of evidence generally, the admissibility of evidence
regarding a dog’s training and reliability is committed to the trial court’s sound discretion’”).
46 Harris v. State, 71 So.3d at 758-59 (“The issue of when a dog’s alert provides probable cause for a search hinges on
the dog’s reliability as a detector of illegal substances within a vehicle. We hold that the State may establish probable
cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality
of the circumstances ... Evidence that the dog has been trained and certified to detect narcotics, standing alone, is not
sufficient to establish the dog’s reliability for purposes of determining probable cause – especially since training
certification in this state are not standardized and thus each training and certification program may differ with no
meaningful way to assess them”).
47 Id. at 762.
48 Id. at 767-68 (“We first note that there is no uniform standard in this state or nationwide for an acceptable level of
training, testing, or certification for drug-detection dogs. In contrast to dual-purpose drug-detection dogs [(dogs trained
both detect drugs and apprehend suspects)], which are apparently certified by FDLE, no such required certification
exists in this state for dogs like Aldo, who is a single-purpose drug-detection dog [(a dog trained only to detect drugs)].
In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a
canine is trained and certified. Simply characterizing a dog as ‘trained’ and ‘certified’ imparts scant information about
what the dog has been conditioned to do or not to do, or how successfully.... Second, and related to the first concern,
any presumption of reliability based only on the fact that the dog has been trained and certified does not take into
account the potential for false alerts, the potential for handler error, and the possibility of alerts to residual odors”).
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[T]o meet its burden of establishing that the officer had a reasonable basis for believing the
dog to be reliable in order to establish probable cause, the State must present the training and
certification records, an explanation of the meaning of the particular training and certification
of that dog, field performance records, and evidence concerning the experience and training
of the officer handling the dog, as well as any other objective evidence known to the officer
about the dog’s reliability in being able to detect the presence of illegal substances within the
vehicle. To adopt the contrary view that the burden is on the defendant to present evidence of
the factors other than certification and training in order to demonstrate that the dog is
unreliable would be contrary to the well-established proposition that the burden is on the
State to establish probable cause for a warrantless search. In addition, since all of the records
and evidence are in the possession of the State, to shift the burden to the defendant to
produce evidence of the dog’s unreliability is unwarranted and unduly burdensome.49
The dissent objected that the court demanded certainty where the Fourth Amendment required
only probability: “[T]he majority demands a level of certainty that goes beyond what is required
by the governing probable cause standard.... The majority here ... imposes evidentiary
requirements which can readily be employed to ensure that the police rely on drug-detection dogs
only when the dogs are shown to be virtually infallible.”50
Bailey v. United States
Whether, under Michigan v. Summers, 452 U.S. 692, 705 (1981), the detention of an
individual who has just left the premises to be searched under warrant is permissible when
the individual is detained out of view of the house as soon as practicable.
The Fourth Amendment prohibits unreasonable searches and seizures.51 Searches and seizures are
presumptively unreasonable, unless they are conducted pursuant to a warrant issued by a neutral
magistrate upon a sworn showing of probable cause.52 Nevertheless, there are circumstances
under which authorities enjoy limited authority to detain an individual without a warrant and with
less than probable cause to believe the individual has committed a crime. One such instance
occurs when officers seek to execute a search warrant. Then, said the Supreme Court in Michigan
v. Summer, “a warrant to search for contraband founded on probable cause implicitly carries with
it the limited authority to detain the occupants of the premises while a proper search is
conducted.”53 Some of the lower federal courts have permitted detention only within the letter of
the Summers rule;54 others have permitted detention consistent with its spirit. The Supreme Court
granted certiorari in Bailey to consider the question.55
49 Id. at 759.
50 Id. at 776 (Canady, Ch.J., dissenting).
51 U.S. Const. Amend. IV.
52 Terry v. Ohio, 393 U.S. 1, 20 (1968).
53 Michigan v. Summers, 452 U.S. 692, 705 (1981).
54 E.g., United States v. Edwards, 103 F.3d 90, 94 (10th Cir. 1996); United States v. Sherrill, 27 F.3d 344, 346 (8th Cir.
1994).
55 Bailey v. United States, 132 S.Ct. 2710 (2012).
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Background
The First District Court of New York issued a warrant for the search of the basement apartment at
103 Lake Drive and for a “chrome .380 handgun” believed to be found there.56 Shortly before
execution of the warrant, narcotics detectives saw two men come up the stairs from the basement
of the building and drive away. Both men, later identified as Bailey and a companion, matched
the informant’s general description of the resident of the apartment. The officers followed them,
and pulled them over after they had travelled about a mile. They patted down the two men,
handcuffed them, and seized Bailey’s wallet and keys. The detectives called for a patrol car that
carried Bailey and his companion back to the apartment. They returned Bailey’s wallet, but used
his keys to drive his car back to the apartment. Once there, officers, who had executed the warrant
in the meantime, disclosed that they had discovered a handgun and drugs in plain view. Then,
they arrested Bailey.
At some point, Bailey was turned over to federal authorities. He was charged with possession of
cocaine, possession of a firearm by a felon, and possession of a firearm during and in furtherance
of drug trafficking.57 His pre-trial motion to suppress the evidence he claimed was seized in
violation of the Fourth Amendment was denied.58 He was convicted and sentenced to prison for
30 years and to 5 years of supervised release.59 He unsuccessfully petitioned for relief in the
nature of habeas corpus based on a claim of ineffective assistance of counsel.60 The Second
Circuit Court of Appeals considered the appeal of the denial of petition together with the appeal
of his conviction.61 It affirmed both his conviction and the denial of relief under Section 2255.62
Speaking with regard to the Fourth Amendment issue, the Second Circuit declared that
“Summers applies with equal force when, for officer safety reasons, police do not detain the
occupant on the curbside, but rather wait for him to leave the immediate area and detain him
as soon as practicable.” That is, Summers imposes upon police a duty based on both
geographic and temporal proximity; police must identify an individual in the process of
leaving the premises subject to search and detain him as soon as practicable during the
execution of the search.63
Supreme Court Precedent and Later Case Law
In Summers, the police arrived to execute a search warrant for narcotics as Summers was leaving
the house to be searched and coming down the steps. They detained him until after they had
entered the house and then brought him inside. When the search uncovered suspected narcotics in
56 The information in this paragraph was gathered from United States v. Bailey, 652 F.3d 197, 200-202 (2d Cir. 2011).
57 Id. at 199 (21 U.S.C. 841(a)(1), (b)(1)(B)(ii)(possession with intent to distribute at least 5 grams of cocaine base); 18
U.S.C. 922(g)(1), 924(a)(2)(possession of a firearm by a previously convicted felon); 18 U.S.C. 924(c)(1)(A)(i)
(possession of a firearm during and in furtherance of drug trafficking)).
58 Id.
59 Id. at 199.
60 Id. at 202 (28 U.S.C. 2255 affords federal prisoners relief if they can establish that they are being held in violation of
the Constitution or other laws of the United States).
61 Id. at 199 n.1.
62 Id. at 208.
63 Id. at 206, quoting the district court, United States v. Bailey, 468 F.Supp.2d 373, 381 n.4 (E.D.N.Y. 2006).
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the cellar, they arrested him. They discovered a packet of heroin in his pocket in a search incident
to his arrest. The Supreme Court held that “a warrant to search for contraband founded on
probable cause carries with it the limited authority to detain the occupants of the premises while a
proper search is conducted.”64
Several considerations influenced the Court’s decision. First, detaining Summers would reduce
the risk of flight should the search reveal incriminating evidence.65 Second, detaining Summers
would reduce the risk that he or someone in the premises whom he might warn would destroy
evidence.66 Third, detaining Summers would reduce the risk of harm to the officers, particularly if
incriminating evidence were discovered.67 Last, Summers’s presence during the execution of a
search warrant might assist in the orderly completion of the search.68
Two decades later, the Court pointed out in Muehler v. Mena that the Summers rule implies the
authority to use reasonable force to detain occupants, including handcuffing them in some
instances.69 The use of handcuffs may be particularly appropriate when firearms are the object of
the search and risk of violence is real.70 The Court mentioned but placed no significance on the
fact that, unlike Summers, Muehler involved a search warrant for evidence rather than for
contraband.71
The Second Circuit acknowledged that the federal courts of appeals are divided over the question
of whether the Summers rule may be extended.72 Like the Second Circuit, the Fourth, Sixth,
Seventh, and Eighth Circuits admit the possibility of some extension of the rule.73 The Fifth and
Tenth Circuits have declined to expand it.74
64 Michigan v. Summers. 452 U.S. at 705.
65 Id. at 702 (“Most obvious is the legitimate law enforcement interest in preventing flight in the event that
incriminating evidence is found”).
66 Id. (“[T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden
violence or frantic efforts to conceal or destroy evidence”).
67 Id. at 702-3 (“Less obvious, but sometimes of greater importance is the interest in minimizing the risk of harm to the
officers. Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant
to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or
destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise
unquestioned command of the situation”).
68 Id. at 703 (“Finally, the orderly completion of the search may be facilitated if the occupants of the premises are
present. Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is
not only damaging to property but may also delay the completion of the task at hand”).
69 Muehler v. Mena, 544 U.S. 93, 98-9 (2005). Justice Kennedy joined in the 5-4 majority but penned a separate
concurrence “to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged.”
Id. at 102 (Kennedy, J., concurring).
70 Id. at 100 (“But this was no ordinary search. The government interests in not only detaining, but using handcuffs, are
at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the
premises”).
71 Id. at 95-6 (“Muehler obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house
and premises for among other things, deadly weapons and evidence of gang membership”).
72 United States v. Bailey, 652 F.3d at 204-205.
73 See e.g., United States v. Montieth, 662 F.3d 660, 668 (4th Cir. 2011)(“[O]fficers may reasonably conclude in
appropriate circumstances that attempting to detain the resident inside his home may unnecessarily elevate the safety
risks attendant to a search.... Here , the officers assessed the inherent risks of a drug search, along with the additional
problem of forcing entry into a house with two young children inside, and took the precaution of first seeking a
consensual entry [after they had pulled over the occupant shortly after he had left the premises to be searched], id. at
667 (“We do not suggest that any detention away from the home to be searched is invariably a reasonable one. The test
(continued...)
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Second Circuit
The Second Circuit’s Bailey decision permits off-site detention incident to the execution of a
search warrant under some conditions.75 Police may remotely detain someone who leaves the
premises to be searched, if they do so as soon as practicable.76 The decision must be supported by
the Summers factors: officer safety, preservation of evidence, and/or prevention of flight.77
In the case at hand, the court concluded that the officers’ decision not to detain Bailey until after
he drove away from the premises was reasonable under the circumstances. The warrant
authorized the search for a firearm in the apartment occupied by a man fitting Bailey’s description
and alleged to be trafficking in drugs.78 Moreover, Bailey’s detention involved neither
unwarranted delays nor efforts to exploit the detention to secure additional evidence.79
(...continued)
is an objective one, and in some circumstances the distance from the home may combine with other factors surrounding
the search to present an objectively unreasonable plan of warrant execution”); United States v. Bullock, 632 F.3d 1004,
1019 (7th Cir. 2011)(“The issue here is whether the reasoning in Summers should be extended to an individual who has
left the residence before execution of the search warrant, is pulled over a few blocks away, and is detained during the
search. Under the particular facts of this case, we find that it should. Bullock’s detention was reasonable given his
suspected criminal activity in connection with the residence, his risk of flight, and the potential danger he posed to
officers if not detained”); United States v. Cavazos, 288 F.3d 706, 711 (5th Cir. 2002)(“Cavazos attempts to distinguish
the instant case from Summers on the basis of geographic proximity. Whereas the defendant in Summers had just exited
the house and was on the front steps when the police detained him, Cavazos was two blocks away from the residence
[after his departure].... In the instant case, Carvazos’s behavior immediately before the detention [(turning on the
officers following him)] and his connection to the house – as either occupant or resident – provided the agents with
ample justification to detain him during the search”); United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991) (“In
Summers, police stopped the individual as he was descending the front steps. In contrast here, police stopped defendant
after he had driven a short distance from his home. We do not find this distinction significant, however. Summers does
not imposed upon police a duty based on geographic proximity (i.e., defendant must be detained while still on his
premises); rather, the focus is upon police performance, that is, whether the police detained defendant as soon as
practicable after departing from his residence”).
74 United States v. Edwards, 103 F.3d 90, 94 (10th Cir. 1996)(“Unlike the defendant in Summers, who was present
where the search warrant was executed, Edwards did not know – prior to being stopped – that any warrant was being
executed. He thus had no reason to flee. The police knew the address of Edwards’s Denver residence, and had no
reason to believe that he would not return to it.... Neither of the latter two Summers interests were served in any way by
Edwards’s extended detention. First, the police quickly determined that Edwards posed no risk of harm to them.
Second, and in contrast to the defendant in Summers, Edwards’s streetside detention played no part in facilitating the
orderly completion of a search being conducted three blocks away”); United States v. Sherrill, 27 F.3d 344, 346 (8th
Cir. 1994)(“Here, because Sherrill had already exited the premises, the intrusiveness of the officers’ stop and detention
on the street was much greater. In addition, although Sherrill did help the officers conduct the search, when the officers
stopped Sherrill, the officers had no interest in preventing flight or minimizing the search’s risk because Sherrill had
left the area of the search and was unaware of the warrant. Thus, we decline the Government’s invitation to extend
Summers to the circumstances of this case”).
75 United States v. Bailey, 652 F.3d at 206 (“Summers applies with equal force when, for officer safety reasons, police
do not detain the occupant on the curbside, but rather wait for him to leave the immediate area and detain him as soon
as practicable”).
76 Id. (“Summers imposes upon police a duty based on both geographic and temporal proximity; police must identify an
individual in the process of leaving the premises subject to search and detain him as soon as practicable during the
execution of the search”).
77 Id. at 206 n.6 (“Indeed, at least two of the law enforcement interests articulated in Summers apply here – namely,
prevention of flight should incriminating evidence be found during the search and minimizing the risk of harm to the
officers”).
78 Id. (“In light of the fact that the officers had reason to suspect that the occupant of 103 Lake Drive sold drugs out of
the house and had a gun in his possession, it was reasonable for the officers to assume that detaining Bailey outside the
(continued...)
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Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
(...continued)
house might lead to the destruction of evidence or unnecessarily risk the safety of the officers”).
79 Id. at 206-207(internal citations omitted)(“Finally, Bailey’s detention was not ‘unreasonably prolonged’ He was
detained for less than ten minutes before he was taken back to 103 Lake Drive. By the time he returned to the site of the
search, the search was underway and he was formally placed under arrest within five minutes of the entry team’s
execution of the warrant. Of equal importance, officers did not attempt to exploit the detention by trying to obtain
additional evidence from Bailey during execution of the search warrant”).
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