Search Incident to Execution of Warrant Upheld

U.S. v. Allen, 2010 WL 3222107 (Aug 17, 2010) At approximately 8:00 p.m., police accompanied by a SWAT team executed a search warrant at a bar where Allen worked as a security guard. The warrant, issued in conjunction with a homicide investigation unrelated to Allen or the bar, authorized collection of security videotapes. The bar was in a high-crime area and was patronized by some with histories of violence, firearm possession, and drug activity. Roughly four months before the raid, a person had been shot at the bar, and a few weeks before the raid an individual was arrested for illegally possessing a firearm inside the bar.

Officers secured the premises inside and outside the bar. Five people-including Allen, who was on duty as a security guard-were standing directly in front of the bar. The SWAT team, wearing armor and with guns drawn, ordered them to lie face down on the sidewalk with their hands in front of them, and explained that they would be detained just long enough to ensure the officers' safety and for the officers to gather the evidence they were seeking. The district court found that Allen, while lying on the ground, volunteered he had a firearm upon observing police take a gun from an individual lying next to him. An officer then searched Allen, seized the gun, and inquired if he had a permit for it. Allen responded that he had an expired, out-of-state permit. Allen was arrested.

In denying Allen’s motion to suppress, the district court concluded that pursuant to Michigan v. Summers, 452 U.S. 692 (1981) (upholding detention of resident during execution of warrant to search house for contraband), and Los Angeles County v. Rettele, 550 U.S. 609 (2007) (approving detention of occupants of home during execution of warrant to search residence and other persons believed to live there for evidence), the search warrant carried with it a limited authorization to secure persons at the bar and that the officers’ actions were reasonable to ensure their safety.

The Third Circuit affirmed. The Court first found Summers distinguishable, because there police had a warrant to search the arrestee’s home for contraband, and thus some basis to suspect the arrestee of potential criminal activity. The arrestee’s detention served to prevent flight, minimize risk of harm from the person who may own the contraband being sought, and assist in orderly completion of the search - of which only minimizing the risk of harm was applicable here. However, relying on Rettele, the Court held that safety concerns alone may be sufficient to detain individuals during execution of a warrant, regardless of whether the search warrant was for evidence (as in Rettele) or contraband (as in Summers). That was the case here, the Court concluded, as police were executing a valid search warrant for evidence at a bar located in a high-crime area, where patrons were known to carry firearms, and where several firearm-related crimes had recently been committed.
The Court distinguished its own precedent in Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001), in which plaintiffs’ detention during a search was held to violate the Fourth Amendment, finding the detention there far more intrusive. It also noted that, at least with respect to language in Leveto distinguishing between searches for contraband and searches for evidence, Retelle supersedes Leveto and renders that distinction immaterial.