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2.7: Chapter 8 - Execution of Warrants

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    Execution of Warrants

    The execution of warrants presents several opportunities for disaster, as well as more minor problems. Straightforward risks include efforts by persons present at the search location to disrupt the search, such as by destroying evidence or barring entry. In addition, the possibility that suspects will assault officers cannot be ignored. The Court has attempted to balance concern about these risks with concern for the civil liberties of persons present during a search. Two common recurring questions include: (1) when officers may detain those present at the search location and (2) when officers may search them.

    In addition to hazards faced by law enforcement officers, other problems can be created by officers themselves or by the judges who issue warrants. For example, a warrant listing the wrong address can cause officers to search the wrong house. Officers who do not read a warrant carefully can search locations beyond those authorized by a warrant. And rough search methods can cause needless property damage.

    We begin with the Court’s rulings about how police may treat persons who are present during the execution of a valid search warrant.

    Supreme Court of the United States

    Darin L. Muehler v. Iris Mena

    Decided March 22, 2005 – 544 U.S. 93

    Chief Justice REHNQUIST delivered the opinion of the Court.

    Respondent Iris Mena was detained in handcuffs during a search of the premises that she and several others occupied. Petitioners were lead members of a police detachment executing a search warrant of these premises. She sued the officers and the District Court found in her favor. The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers’ questioning of Mena about her immigration status during the detention constituted an independent Fourth Amendment violation. We hold that Mena’s detention in handcuffs for the length of the search was consistent with our opinion in Michigan v. Summers, 452 U.S. 692 (1981), and that the officers’ questioning during that detention did not violate her Fourth Amendment rights.

    Based on information gleaned from the investigation of a gang-related, driveby shooting, petitioners Muehler and Brill had reason to believe at least one member of a gang—the West Side Locos—lived at 1363 Patricia Avenue. They also suspected that the individual was armed and dangerous, since he had recently been involved in the driveby shooting. As a result, 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. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search.

    At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word “POLICE,” entered her bedroom and placed her in handcuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bedroom furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs.

    Aware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. Mena’s status as a permanent resident was confirmed by her papers.1

    The search of the premises yielded a .22 caliber handgun with .22 caliber ammunition, a box of .25 caliber ammunition, several baseball bats with gang writing, various additional gang paraphernalia, and a bag of marijuana. Before the officers left the area, Mena was released.

    In her § 1983 suit against the officers she alleged that she was detained “for an unreasonable time and in an unreasonable manner” in violation of the Fourth Amendment. In addition, she claimed that the warrant and its execution were overbroad, that the officers failed to comply with the “knock and announce” rule, and that the officers had needlessly destroyed property during the search. The officers moved for summary judgment, asserting that they were entitled to qualified immunity, but the District Court denied their motion. The Court of Appeals affirmed that denial, except for Mena’s claim that the warrant was overbroad; on this claim the Court of Appeals held that the officers were entitled to qualified immunity. After a trial, a jury, pursuant to a special verdict form, found that Officers Muehler and Brill violated Mena’s Fourth Amendment right to be free from unreasonable seizures by detaining her both with force greater than that which was reasonable and for a longer period than that which was reasonable. The jury awarded Mena $10,000 in actual damages and $20,000 in punitive damages against each petitioner for a total of $60,000.

    The Court of Appeals affirmed the judgment on two grounds. Reviewing the denial of qualified immunity de novo, it first held that the officers’ detention of Mena violated the Fourth Amendment because it was objectively unreasonable to confine her in the converted garage and keep her in handcuffs during the search. In the Court of Appeals’ view, the officers should have released Mena as soon as it became clear that she posed no immediate threat. The court additionally held that the questioning of Mena about her immigration status constituted an independent Fourth Amendment violation. The Court of Appeals went on to hold that those rights were clearly established at the time of Mena’s questioning, and thus the officers were not entitled to qualified immunity. We granted certiorari and now vacate and remand.

    In Michigan v. Summers, 452 U.S. 692 (1981), 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.” Such detentions are appropriate, we explained, because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. We made clear that the detention of an occupant is “surely less intrusive than the search itself,” and the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. Against this incremental intrusion, we 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.”

    Mena’s detention was, under Summers, plainly permissible. 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.” Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.

    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.”

    The officers’ use of force in the form of handcuffs to effectuate Mena’s detention in the garage, as well as the detention of the three other occupants, was reasonable because the governmental interests outweigh the marginal intrusion. The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage. The detention was thus more intrusive than that which we upheld in Summers.

    But this was no ordinary search. The governmental 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. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable.

    Mena argues that, even if the use of handcuffs to detain her in the garage was reasonable as an initial matter, the duration of the use of handcuffs made the detention unreasonable. The duration of a detention can, of course, affect the balance of interests. However, the 2– to 3–hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests. As we have noted, this case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons. We conclude that the detention of Mena in handcuffs during the search was reasonable.

    The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the detention. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.

    In summary, the officers’ detention of Mena in handcuffs during the execution of the search warrant was reasonable and did not violate the Fourth Amendment. Additionally, the officers’ questioning of Mena did not constitute an independent Fourth Amendment violation.

    The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.

    Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, concurring in the judgment.

    In its opinion affirming the judgment, the Court of Appeals made two mistakes. First, as the Court explains, it erroneously held that the immigration officers’ questioning of Mena about her immigration status was an independent violation of the Fourth Amendment. Second, instead of merely deciding whether there was sufficient evidence in the record to support the jury’s verdict, the Court of Appeals appears to have ruled as a matter of law that the officers should have released her from the handcuffs sooner than they did. I agree that it is appropriate to remand the case to enable the Court of Appeals to consider whether the evidence supports Mena’s contention that she was held longer than the search actually lasted. In doing so, the Court of Appeals must of course accord appropriate deference to the jury’s reasonable factual findings, while applying the correct legal standard.

    In my judgment, however, the Court’s discussion of the amount of force used to detain Mena is analytically unsound. Although the Court correctly purports to apply the “objective reasonableness” test announced in Graham v. Connor, 490 U.S. 386 (1989), it misapplies that test. Given the facts of this case—and the presumption that a reviewing court must draw all reasonable inferences in favor of supporting the verdict—I think it clear that the jury could properly have found that this 5–foot–2–inch young lady posed no threat to the officers at the scene, and that they used excessive force in keeping her in handcuffs for up to three hours. Although Summers authorizes the detention of any individual who is present when a valid search warrant is being executed, that case does not give officers carte blanche to keep individuals who pose no threat in handcuffs throughout a search, no matter how long it may last. On remand, I would therefore instruct the Court of Appeals to consider whether the evidence supports Mena’s contention that the petitioners used excessive force in detaining her when it considers the length of the Summers detention.

    As the Court notes, the warrant in this case authorized the police to enter the Mena home to search for a gun belonging to Raymond Romero that may have been used in a gang-related driveby shooting. Romero, a known member of the West Side Locos gang, rented a room from the Mena family. The house, described as a “‘poor house,’” was home to several unrelated individuals who rented from the Menas. Each resident had his or her own bedroom, which could be locked with a padlock on the outside, and each had access to the living room and kitchen. In addition, several individuals lived in trailers in the back yard and also had access to the common spaces in the Mena home.

    In addition to Romero, police had reason to believe that at least one other West Side Locos gang member had lived at the residence, although Romero’s brother told police that the individual had returned to Mexico. The officers in charge of the search, petitioners Muehler and Brill, had been at the same residence a few months earlier on an unrelated domestic violence call, but did not see any other individuals they believed to be gang members inside the home on that occasion.

    In light of the fact that the police believed that Romero possessed a gun and that there might be other gang members at the residence, petitioner Muehler decided to use a Special Weapons and Tactics (SWAT) team to execute the warrant. As described in the majority opinion, eight members of the SWAT team forcefully entered the home at 7 a.m. In fact, Mena was the only occupant of the house, and she was asleep in her bedroom. The police woke her up at gunpoint, and immediately handcuffed her. At the same time, officers served another search warrant at the home of Romero’s mother, where Romero was known to stay several nights each week. In part because Romero’s mother had previously cooperated with police officers, they did not use a SWAT team to serve that warrant. Romero was found at his mother’s house; after being cited for possession of a small amount of marijuana, he was released.

    Meanwhile, after the SWAT team secured the Mena residence and gave the “all clear,” police officers transferred Mena and three other individuals (who had been in trailers in the back yard) to a converted garage. To get to the garage, Mena, who was still in her bedclothes, was forced to walk barefoot through the pouring rain. The officers kept her and the other three individuals in the garage for up to three hours while they searched the home. Although she requested them to remove the handcuffs, they refused to do so. For the duration of the search, two officers guarded Mena and the other three detainees. A .22–caliber handgun, ammunition, and gang-related paraphernalia were found in Romero’s bedroom, and other gang-related paraphernalia was found in the living room. Officers found nothing of significance in Mena’s bedroom.

    Police officers’ legitimate concern for their own safety is always a factor that should weigh heavily in balancing the relevant Graham factors. But, as Officer Brill admitted at trial, if that justification were always sufficient, it would authorize the handcuffing of every occupant of the premises for the duration of every Summers detention. Nothing in either the Summers or the Graham opinion provides any support for such a result. Rather, the decision of what force to use must be made on a case-by-case basis. There is evidence in this record that may well support the conclusion that it was unreasonable to handcuff Mena throughout the search. On remand, therefore, I would instruct the Ninth Circuit to consider that evidence, as well as the possibility that Mena was detained after the search was completed, when deciding whether the evidence in the record is sufficient to support the jury’s verdict.

    Notes, Comments, and Questions

    Although the Court has authorized officers executing a search warrant to detain persons found on the premises, officers do not necessarily have authority to search the persons who are detained. In Ybarra v. Illinois, 444 U.S. 85 (1979), the Court considered a search that police had conducted at a bar pursuant to a warrant. The warrant allowed police to search the bar and the bartender for drugs, and it was based on reports of “tinfoil packets” possessed by the bartender and stored behind the bar.

    When officers arrived at the bar, they told patrons to prepare to be searched for weapons, and officers then patted down the patrons. During one pat down, an officer felt a cigarette pack that seemed to have objects in it. The officer later removed the package from the suspect’s pocket and opened it, finding tinfoil packets containing heroin.

    The suspect, charged with possession of the heroin, moved to suppress the evidence as the fruit of an illegal search. The Supreme Court agreed, holding that officers lacked probable cause to believe that any particular customer possessed drugs. “It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91. (The Court also rejected an argument that the initial pat down was a lawful “stop and frisk” authorized by the Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), a topic to which we will return.) See also United States v. Di Re, 332 U.S. 581 (1948) (holding that even if the search of a certain car was lawful, that did not justify the ensuing search of its occupant).

    A magazine aimed at a police officer readership stated the Court’s holding clearly and succinctly in a 2016 article called “Serving the Search Warrant.”2 One heading reads: “Occupants Can be Detained.” The next heading is: “Occupants Cannot be Searched.” The article advises officers, “To justify searching detainees who are not authorized to be searched by the warrant, try to develop grounds for warrantless search, such as consent or probationary/parole search terms, where available.” We will examine these police tactics later in the book.

    If mere presence during the execution of a search warrant does not justify the search of a person, it follows that mere presence surely does not justify arresting everyone present. To reinforce this message, the Legal Bureau of the New York Police Department issued a bulletin in 2013 to this effect.3 In response to the question, “May a police officer arrest all persons found in a location during the execution of a search warrant?,” the bulletin answered, “No. An individual’s mere presence in a search location does not establish probable cause to arrest.”

    Note that while police may detain persons present at the location to be searched, they may not detain persons who happened to be at the location earlier but have already left before police arrive to execute the warrant. In Bailey v. United States, 568 U.S. 186 (2013), the Court held that the rule of Michigan v. Summers, 452 U.S. 692 (1981) applies only to those in “the immediate vicinity of the premises to be searched.” The Court explained, “Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place.” In Bailey, officers had followed two men 0.7 miles after seeing them leave the building officers had been about to search. The Court found the detention unreasonable. In a dissent, Justice Breyer complained that “immediate vicinity” was not defined by the majority.

    In the next two cases, we examine what happens when police search the wrong location when executing a warrant. In one case, a building turned out to have more apartments than officers realized when obtaining the warrant, causing officers to search the wrong person’s home. In the other, officers entered a house looking for suspects who had moved out months earlier, causing an unpleasant surprise to the new residents.

    Supreme Court of the United States

    Maryland v. Harold Garrison

    Decided Feb. 24, 1987 – 480 U.S. 79

    Justice STEVENS delivered the opinion of the Court.

    Baltimore police officers obtained and executed a warrant to search the person of Lawrence McWebb and “the premises known as 2036 Park Avenue third floor apartment.” When the police applied for the warrant and when they conducted the search pursuant to the warrant, they reasonably believed that there was only one apartment on the premises described in the warrant. In fact, the third floor was divided into two apartments, one occupied by McWebb and one by respondent Garrison. Before the officers executing the warrant became aware that they were in a separate apartment occupied by respondent, they had discovered the contraband that provided the basis for respondent’s conviction for violating Maryland’s Controlled Substances Act. The question presented is whether the seizure of that contraband was prohibited by the Fourth Amendment.

    The trial court denied respondent’s motion to suppress the evidence seized from his apartment, and the Maryland Court of Special Appeals affirmed. The Court of Appeals of Maryland reversed and remanded with instructions to remand the case for a new trial.

    There is no question that the warrant was valid and was supported by probable cause. The trial court found, and the two appellate courts did not dispute, that after making a reasonable investigation, including a verification of information obtained from a reliable informant, an exterior examination of the three-story building at 2036 Park Avenue, and an inquiry of the utility company, the officer who obtained the warrant reasonably concluded that there was only one apartment on the third floor and that it was occupied by McWebb. When six Baltimore police officers executed the warrant, they fortuitously encountered McWebb in front of the building and used his key to gain admittance to the first-floor hallway and to the locked door at the top of the stairs to the third floor. As they entered the vestibule on the third floor, they encountered respondent, who was standing in the hallway area. The police could see into the interior of both McWebb’s apartment to the left and respondent’s to the right, for the doors to both were open. Only after respondent’s apartment had been entered and heroin, cash, and drug paraphernalia had been found did any of the officers realize that the third floor contained two apartments. As soon as they became aware of that fact, the search was discontinued. All of the officers reasonably believed that they were searching McWebb’s apartment. No further search of respondent’s apartment was made.

    The matter on which there is a difference of opinion concerns the proper interpretation of the warrant. A literal reading of its plain language, as well as the language used in the application for the warrant, indicates that it was intended to authorize a search of the entire third floor. This is the construction adopted by the intermediate appellate court and it also appears to be the construction adopted by the trial judge. One sentence in the trial judge’s oral opinion, however, lends support to the construction adopted by the Court of Appeals, namely, that the warrant authorized a search of McWebb’s apartment only. Under that interpretation, the Court of Appeals concluded that the warrant did not authorize the search of respondent’s apartment and the police had no justification for making a warrantless entry into his premises.

    Because the result that the Court of Appeals reached did not appear to be required by the Fourth Amendment, we granted certiorari. We reverse.

    In our view, the case presents two separate constitutional issues, one concerning the validity of the warrant and the other concerning the reasonableness of the manner in which it was executed.


    The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one “particularly describing the place to be searched and the persons or things to be seized.” The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.”

    In this case there is no claim that the “persons or things to be seized” were inadequately described or that there was no probable cause to believe that those things might be found in “the place to be searched” as it was described in the warrant. With the benefit of hindsight, however, we now know that the description of that place was broader than appropriate because it was based on the mistaken belief that there was only one apartment on the third floor of the building at 2036 Park Avenue. The question is whether that factual mistake invalidated a warrant that undoubtedly would have been valid if it had reflected a completely accurate understanding of the building’s floor plan.

    Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent’s apartment from the scope of the requested warrant. But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued. Just as the discovery of contraband cannot validate a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. On the basis of that information, we agree with the conclusion of all three Maryland courts that the warrant, insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it issued.


    The question whether the execution of the warrant violated respondent’s constitutional right to be secure in his home is somewhat less clear. We have no difficulty concluding that the officers’ entry into the third-floor common area was legal; they carried a warrant for those premises, and they were accompanied by McWebb, who provided the key that they used to open the door giving access to the third-floor common area. If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. The officers’ conduct and the limits of the search were based on the information available as the search proceeded. While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.

    [T]he validity of the search of respondent’s apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers’ failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Here it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb’s apartment and the third-floor premises.

    For that reason, the officers properly responded to the command contained in a valid warrant even if the warrant is interpreted as authorizing a search limited to McWebb’s apartment rather than the entire third floor. Prior to the officers’ discovery of the factual mistake, they perceived McWebb’s apartment and the third-floor premises as one and the same; therefore their execution of the warrant reasonably included the entire third floor. Under either interpretation of the warrant, the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.

    The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

    Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

    Under this Court’s precedents, the search of respondent Garrison’s apartment violated the Fourth Amendment. While executing a warrant specifically limited to McWebb’s residence, the officers expanded their search to include respondent’s adjacent apartment, an expansion made without a warrant and in the absence of exigent circumstances. In my view, Maryland’s highest court correctly concluded that the trial judge should have granted respondent’s motion to suppress the evidence seized as a result of this warrantless search of his apartment. Moreover, even if I were to accept the majority’s analysis of this case as one involving a mistake on the part of the police officers, I would find that the officers’ error, either in obtaining or in executing the warrant, was not reasonable under the circumstances.


    The Fourth Amendment states that “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.” The particularity-of-description requirement is satisfied where “the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” In applying this requirement to searches aimed at residences within multiunit buildings, such as the search in the present case, courts have declared invalid those warrants that fail to describe the targeted unit with enough specificity to prevent a search of all the units.

    Applying the above principle[] to this case, I conclude that the search of respondent’s apartment was improper. The words of the warrant were plain and distinctive: the warrant directed the officers to seize marijuana and drug paraphernalia on the person of McWebb and in McWebb’s apartment, i.e., “on the premises known as 2036 Park Avenue third floor apartment.” As the Court of Appeals observed, this warrant specifically authorized a search only of McWebb’s—not respondent’s—residence. In its interpretation of the warrant, the majority suggests that the language of this document, as well as that in the supporting affidavit, permitted a search of the entire third floor. It escapes me why the language in question, “third floor apartment,” when used with reference to a single unit in a multiple-occupancy building and in the context of one person’s residence, plainly has the meaning the majority discerns, rather than its apparent and, indeed, obvious signification—one apartment located on the third floor. Accordingly, if, as appears to be the case, the warrant was limited in its description to the third-floor apartment of McWebb, then the search of an additional apartment—respondent’s—was warrantless and is presumed unreasonable “in the absence of some one of a number of well defined ‘exigent circumstances.’” Because the State has not advanced any such exception to the warrant requirement, the evidence obtained as a result of this search should have been excluded.


    Because the Court cannot justify the officers’ search under the “exceptional circumstances” rubric, it analyzes the police conduct here in terms of “mistake.” According to the Court, hindsight makes it clear that the officers were mistaken, first, in not describing McWebb’s apartment with greater specificity in the warrant, and second, in including respondent’s apartment within the scope of the execution of the warrant. The Court’s inquiry focuses on what the officers knew or should have known at these particular junctures. The Court reasons that if, in light of the officers’ actual or imputed knowledge, their behavior was reasonable, then their mistakes did not constitute an infringement on respondent’s Fourth Amendment rights. In this case, the Court finds no Fourth Amendment violation because the officers could not reasonably have drawn the warrant with any greater particularity and because, until the moment when the officers realized that they were in fact searching two different apartments, they had no reason to believe that McWebb’s residence did not cover the entire third floor.

    Even if one accepts the majority’s view that there is no Fourth Amendment violation where the officers’ mistake is reasonable, it is questionable whether that standard was met in this case. To repeat Justice Harlan’s observation, although the proper question in Fourth Amendment analysis is “what protection it affords to … people, … that question requires reference to a ‘place.’” The “place” at issue here is a small multiple-occupancy building. Such forms of habitation are now common in this country, particularly in neighborhoods with changing populations and of declining affluence. Accordingly, any analysis of the “reasonableness” of the officers’ behavior here must be done with this context in mind.

    The efforts of Detective Marcus, the officer who procured the search warrant, do not meet a standard of reasonableness, particularly considering that the detective knew the search concerned a unit in a multiple-occupancy building. Upon learning from his informant that McWebb was selling marijuana in his third-floor apartment, Marcus inspected the outside of the building. He did not approach it, however, to gather information about the configuration of the apartments. Had he done so, he would have discovered, as did another officer on the day of executing the warrant, that there were seven separate mailboxes and bells on the porch outside the main entrance to the house. Although there is some dispute over whether names were affixed near these boxes and bells, their existence alone puts a reasonable observer on notice that the three-story structure (with, possibly, a basement) had seven individual units. The detective, therefore, should have been aware that further investigation was necessary to eliminate the possibility of more than one unit’s being located on the third floor. Moreover, when Detective Marcus’ informant told him that he had purchased drugs in McWebb’s apartment, it appears that the detective never thought to ask the informant whether McWebb’s apartment was the only one on the third floor. These efforts, which would have placed a slight burden upon the detective, are necessary in order to render reasonable the officer’s behavior in seeking the warrant.

    Moreover, even if one believed that Marcus’ efforts in providing information for issuance of the warrant were reasonable, I doubt whether the officers’ execution of the warrant could meet such a standard. In the Court’s view, the “objective facts” did not put the officers on notice that they were dealing with two separate apartments on the third floor until the moment, considerably into the search after they had rummaged through a dresser and a closet in respondent’s apartment and had discovered evidence incriminating him, when they realized their “mistake.” The Court appears to base its conclusion that the officers’ error here was reasonable on the fact that neither McWebb nor respondent ever told the officers during the search that they lived in separate apartments.

    In my view, however, the “objective facts” should have made the officers aware that there were two different apartments on the third floor well before they discovered the incriminating evidence in respondent’s apartment. Before McWebb happened to drive up while the search party was preparing to execute the warrant, one of the officers, Detective Shea, somewhat disguised as a construction worker, was already on the porch of the row house and was seeking to gain access to the locked first-floor door that permitted entrance into the building. From this vantage point he had time to observe the seven mailboxes and bells; indeed, he rang all seven bells, apparently in an effort to summon some resident to open the front door to the search party. A reasonable officer in Detective Shea’s position, already aware that this was a multiunit building and now armed with further knowledge of the number of units in the structure, would have conducted at that time more investigation to specify the exact location of McWebb’s apartment before proceeding further. For example, he might have questioned another resident of the building.

    It is surprising, moreover, that the Court places so much emphasis on the failure of McWebb to volunteer information about the exact location of his apartment. When McWebb drove up, one of the police vehicles blocked his car and the officers surrounded him and his passenger as they got out. Although the officers had no arrest warrant for McWebb, but only a search warrant for his person and apartment, and although they testified that they did not arrest him at that time, it was clear that neither McWebb nor his passenger was free to leave. In such circumstances, which strongly suggest that McWebb was already in custody, it was proper for the officers to administer to him [Miranda] warnings. It would have been reasonable for the officers, aware of the problem, from Detective Shea’s discovery, in the specificity of their warrant, to ask McWebb whether his apartment was the only one on the third floor. As it is, the officers made several requests of and questioned McWebb, without giving him Miranda warnings, and yet failed to ask him the question, obvious in the circumstances, concerning the exact location of his apartment.

    Moreover, a reasonable officer would have realized the mistake in the warrant during the moments following the officers’ entrance to the third floor. The officers gained access to the vestibule separating McWebb’s and respondent’s apartments through a locked door for which McWebb supplied the key. There, in the open doorway to his apartment, they encountered respondent. Once again, the officers were curiously silent. The informant had not led the officers to believe that anyone other than McWebb lived in the third-floor apartment; the search party had McWebb, the person targeted by the search warrant, in custody when it gained access to the vestibule; yet when they met respondent on the third floor, they simply asked him who he was but never where he lived. Had they done so, it is likely that they would have discovered the mistake in the warrant before they began their search.

    Finally and most importantly, even if the officers had learned nothing from respondent, they should have realized the error in the warrant from their initial security sweep. Once on the third floor, the officers first fanned out through the rooms to conduct a preliminary check for other occupants who might pose a danger to them. As the map of the third floor demonstrates, the two apartments were almost a mirror image of each other—each had a bathroom, a kitchen, a living room, and a bedroom. Given the somewhat symmetrical layout of the apartments, it is difficult to imagine that, in the initial security sweep, a reasonable officer would not have discerned that two apartments were on the third floor, realized his mistake, and then confined the ensuing search to McWebb’s residence.

    Accordingly, even if a reasonable error on the part of police officers prevents a Fourth Amendment violation, the mistakes here, both with respect to obtaining and executing the warrant, are not reasonable and could easily have been avoided.

    I respectfully dissent.

    * * *

    In the next case, the Supreme Court forcefully rejects the reasoning of a decision by the U.S. Court of Appeals for the Ninth Circuit. The Court not only decided the case per curiam—that is, in an unsigned opinion—but also did so immediately upon the grant of certiorari, without allowing briefing or oral argument on the merits.

    Supreme Court of the United States

    Los Angeles County, California v. Max Rettele

    Decided May 21, 2007 – 550 U.S. 609.


    Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress.

    The residents brought suit, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.


    From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

    On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed he could find the suspects. The warrant authorized him to search the homes and three of the suspects for documents and computer files. In support of the search warrant an affidavit cited various sources showing the suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do not dispute the validity of the warrant or the means by which it was obtained.

    What Watters did not know was that one of the houses (the first to be searched) had been sold in September to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

    On the morning of December 19, Watters briefed six other deputies in preparation for the search of the houses. Watters informed them they would be searching for three African–American suspects, one of whom owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their own safety. Watters had not obtained special permission for a night search, so he could not execute the warrant until 7 a.m. Around 7:15 Watters and six other deputies knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after ordering Hall to lie face down on the ground.

    The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.

    By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

    Rettele and Sadler, individually and as guardians ad litem for Hall, filed this § 1983 suit against Los Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The District Court held that the warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the deputies were entitled to qualified immunity.

    On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit reversed in an unpublished opinion.


    Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.” We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African–American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.

    In Michigan v. Summers, 452 U.S. 692 (1981), this Court held that officers executing a search warrant for contraband may “detain the occupants of the premises while a proper search is conducted.” In weighing whether the search in Summers was reasonable the Court first found that “detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Against that interest, it balanced “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.”

    In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. The test of reasonableness under the Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.

    The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons.

    The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”

    This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that “special circumstances, or possibly a prolonged detention,” might render a search unreasonable. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2– to 3–hour handcuff detention upheld in Mena. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on.”

    The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

    Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

    Notes, Comments, and Questions

    One issue potentially raised by the facts of Rettele—although not addressed by the Justices—is the question of when a warrant goes “stale.” A warrant based upon probable cause to believe that contraband or suspects will be found in a certain place becomes less reliable over time. To pick an extreme example, if police receive a warrant in 2018 to search a particular house for a suspect, news that the suspect died in 2019 would make it unreasonable for police to execute the warrant in 2021. Actual cases will present closer questions. For example, a warrant to search for drugs recently delivered to the house of a dealer might go stale relatively quickly because the dealer is likely to sell the drugs soon. By contrast, courts have found that collectors of child pornography rarely destroy their material, meaning that warrants to search their computers for illicit images do not go stale. Similarly, a warrant to search an accountant’s office for documents proving a client’s tax fraud would probably remain “fresh” for a long time.

    A 2010 raid on a Columbia, Missouri home illustrates the issue. Police had an eight-day-old warrant to search the house of Jonathan Whitworth for drugs. The raid went poorly, and officers shot two dogs, killing one. Officers pointed guns at Whitworth’s wife and her seven-year-old daughter. While some contraband was found, police did not discover evidence of significant drug dealing.4 Whitworth and his family sued the police, alleging among other things that the warrant was stale when executed. Although the court dismissed the lawsuit, Columbia police adopted new policies in response to outcry over the incident.5 (A video of the raid—which is unpleasant to watch—is available online: [YouTube])

    Sample Search Warrant Application Form (available online)

    Image No. 5