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9.22 Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Detention During Execution of Search Warrant

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This chapter is being reviewed in light of comments solicited by the Committee from the public.


In general, a law enforcement officer may detain an occupant of a building during a search of the building authorized by a search warrant so long as the officer detains the person in a reasonable manner and does not detain the person any longer than the time it takes to complete the search.

In order to prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that [he] [she] was detained in an unreasonable manner or for a period of time after the search was completed or both.

In determining whether the officer[s] detained the plaintiff unreasonably in this case, consider all of the circumstances known to the officer[s] on the scene, including:

1. the severity of the suspected crime or other circumstances that led to the search warrant;

2. whether the plaintiff was the subject of the investigation that led to the search warrant;

3. whether the plaintiff posed an immediate threat to the safety of the officer[s] or to others or to the ability of the officer[s] to conduct the search safely;

4. whether the plaintiff was actively resisting arrest or attempting to flee;

5. whether the detention of the plaintiff was unnecessarily painful, degrading, prolonged, or involved an undue invasion of privacy;

[6. other factors particular to the case.]

Under the Fourth Amendment, an officer may only use such force to detain a person as is "objectively reasonable" under the circumstances. In other words, you must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.



Use this instruction only in conjunction with the applicable elements instructions, Instruction 9.3-9.8 and in conjunction with Instruction 9.19 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Generally).

This instruction is based on the district court’s jury instructions approved (concurring opinion of Stevens, J.) in Muehler v. Mena, 544 U.S. 93, 104-08 (2005) (rev’g Mena v. City of Simi Valley, 332 F.3d 1255, 1267 (9th Cir.2003). Therein, the Supreme Court reiterated the Fourth Amendment analysis applicable when an occupant is detained during the search of premises pursuant to a search warrant:

In Michigan v. Summers,… we held that officers executing a search warrant for contraband have the authority "to detain the occupants of the premises while a proper search is conducted."… [W]e posited three legitimate law enforcement interests that provide substantial justification for detaining an occupant: "preventing flight in the event that incriminating evidence is found"; "minimizing the risk of harm to the officers"; and facilitating "the orderly completion of the search," as detainees’ "self-interest may induce them to open locked doors or locked containers to avoid the use of force."…

… An officer’s authority to detain incident to a search is categorical; it does not depend on the "quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure." … Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. … Indeed, Summers itself stressed that the risk of harm to officers and occupants is minimized "if the officers routinely exercise unquestioned command of the situation."

Id. at 98 (citations omitted). See also Meredith v. Erath, 342 F.3d 1057 (9th Cir.2003).

After Muehler v. Mena, the Ninth Circuit noted in Dawson v. City of Seattle that:

The Supreme Court’s precedents, and our own, establish that the police may detain a building’s occupants while officers execute a search warrant as long as the detention is reasonable. … To determine whether a detention incident to a search is constitutionally reasonable, we balance the law enforcement interests served by the detention against the public's privacy interests. … Since [Michigan v.] Summers, we have recognized that detaining a building’s occupants serves at least three law enforcement interests: first, detention prevents a suspect from fleeing before the police discover contraband; second, detention minimizes the risk that an officer or an occupant might be harmed during the search; and third, detention often expedites a search.

Dawson v. City of Seattle, 435 F.3d 1054, 1065–66 (9th Cir.2006). The court held:

We interpret the Supreme Court’s language to mean that the duration of a detention may be coextensive with the period of a search, and require no further justification. The police do not, however, have unfettered authority to detain a building’s occupants in any way they see fit. Id. Muehler confirms an officer’s authority to detain a building’s occupants during a search so long as the officer conducts the detention in a reasonable manner.

Id. See also Howell v. Polk, 532 F.3d 1025 (9th Cir.2008) (whether "knock-and-announce" search warrant was unreasonably executed was a jury question to be determined under the totality of the circumstances).

In Bailey v. United States, 133 S. Ct. 1031, 1042 (2013), the Supreme Court concluded that because the rule announced in Summers "grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed." The Court decided "[a] spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant." Id. "Confining an officer’s authority to detain under Summers to the immediate vicinity of a premises to be searched is a proper limit because it accords with the rationale of the rule." Id. Thus, as in Bailey, when law enforcement waits to stop or detain a suspect after he or she has left the search location, "the lawfulness of the detention is controlled [not by Summers, but] by other standards," namely, probable cause or reasonable suspicion. Id.