The Supreme Court rejected the Ninth Circuit view that detention during the full search was impermissible, saying, "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."
The Handcuffing Issue
The Ninth Circuit also ruled that Mena's Fourth Amendment rights had been violated because her handcuffs were not promptly removed "when it became clear that she posed no immediate threat."
The Supreme Court also reversed this portion of the Ninth Circuit ruling. Recognizing that handcuffing is a use of force for Fourth Amendment purposes, the court said, "Inherent in the authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention."
The court pointed out that the underlying case was a crime of violence, the warrant was based on probable cause to believe that gang members and weapons might be located in the premises, and there were multiple occupants and only a limited number of officers to guard them while others completed the search. These circumstances made the use of cuffs for the full length of the search reasonable, said the court.
Note the difference between the categorical rule that you can always detain the occupants while serving a search warrant, and the more limited rule that you can use handcuffs where the nature of the case and other circumstances make it reasonable to do so. In other words, you can always detain without further justification while the search is completed, but the use of handcuffs will be evaluated on the basis of all the circumstances you confronted, to see if that use of force was justified, and therefore reasonable.
The Questioning Issue
According to the Ninth Circuit, merely asking Mena about her immigration status violated the Fourth Amendment. The circuit court ruled that an officer must have "a particularized reasonable suspicion that an individual is not a citizen to interrogate that individual about his citizenship." The Ninth Circuit therefore held that Mena could be awarded money for simply having questions put to her.
The Supreme Court reversed this error, as well. The court pointed out that simply asking a person questions does not implicate the Fourth Amendment because questioning is neither a "search" nor a "seizure." This is such well-settled law that the Supreme Court chastised the Ninth Circuit for its "faulty" reasoning: "We have repeatedly held that mere police questioning does not constitute a 'seizure.' Hence, the officers did not need reasonable suspicion to ask Mena her name, date and place of birth, or immigration status."
Although the Supreme Court reversed the Ninth Circuit ruling on all three of the points raised, the case was remanded for further litigation on the issue of whether Mena could show that she had still been detained after the search was completed. This strongly implies that officers may be held civilly liable for continuing to detain occupants once the search is over. And remember that unless they are named in the warrant, occupants may not be routinely searched. (Ybarra v. Illinois)
To reduce risks of civil liability and suppression of evidence while accommodating officer safety, routine detentions should end once the search is over, and the use of handcuffs should be justified by the particular circumstances of each case. Non-coercive questions may be asked of detainees (subject to Miranda, while they remain handcuffed).
Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.