he Fourth Amendment permits officers executing high-risk search warrants for dangerous people, weapons, or contraband to handcuff and detain occupants of the premises during the conduct of the search. Mere police questioning of those who are detained does not, by itself, constitute a seizure or require Fourth Amendment justification.
These principles were reaffirmed and strengthened in the U.S. Supreme Court's recent decision of Muehler v. Mena. 1 In a 9-0 decision2 the Court vacated the decision of the Ninth Circuit Court of Appeals, which had upheld a jury verdict in favor of the plaintiff, Iris Mena.
At the trial level, a jury had found that Officers Muehler and Brill had violated Mena's Fourth Amendment right to be free from unreasonable seizures by using greater force (handcuffs) than was reasonable to detain her and by detaining her for a longer period than was reasonable. The jury awarded Mena $10,000 in actual damages and $20,000 in punitive damages against each officer, for a total of $60,000. 3
The Ninth Circuit affirmed the judgment holding that the use of handcuffs to restrain Mena during the two to three hour search violated her Fourth Amendment rights and that the questioning of Mena by the officers during the detention constituted a separate Fourth Amendment violation.
The Supreme Court held that "Mena's detention in handcuffs for the length of the search was consistent with our opinion in Michigan v. Summers . . . and that the officers' questioning during that detention did not violate her Fourth Amendment rights." 4
Based upon information gathered by Officers Muehler and Brill during an investigation into a gang-related drive-by shooting, they had reason to believe that at least one member of the West Side Locos gang suspected of being involved in the drive-by shooting lived at a particular address and was suspected to be armed and dangerous.
Muehler obtained a search warrant for the address that authorized a very broad search of the house and premises for deadly weapons and evidence of gang membership, among other things. The SWAT team was used to secure the residence and grounds before the search because of the high degree of risk involved in searching a gang member's residence.
At 7:00 a.m., Officers Muehler and Brill along with the SWAT team and other officers executed the search warrant. Mena, who lived at the home to be searched, was awakened from her sleep by SWAT officers who entered her bedroom and placed her in handcuffs at gunpoint.
Officers found three other individuals on the premises and placed them in handcuffs. They held Mena and the three others in a converted garage while the search proceeded.
Knowing that the West Side Locos gang was composed primarily of illegal immigrants, the officers notified the Immigration and Naturalization Service (INS) that they would be conducting a search. An INS agent accompanied the officers and asked each of those detained, including Mena, questions relating to his or her immigration status.
The search, which lasted for almost three hours, yielded a handgun, ammunition, baseball bats with gang writing on them, items of gang paraphernalia, and a bag of marijuana. Mena was released from the handcuffs when the officers left the premises and was not taken into custody or charged with any crime.
Michigan v. Summers Revisited
The legal underpinnings for the Court's decision in Mena can be found in the case of Michigan v. Summers. 5 There the Supreme Court 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." 6 In Mena the Court takes time to reemphasize many of the key concepts it formulated in Summers. First, detentions while a search is conducted are appropriate because the nature of the additional intrusion caused by the detention is slight, much less intrusive than the search itself, and the justifications for the detention are substantial. 7
Second, the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. 8 Finally, and importantly, the Court restates three legitimate law enforcement interests it enunciated in Summers 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
- Facilitating the orderly completion of the search9
In Summers the Court also identified the legitimate interest of preventing the destruction or hiding of evidence. 10
The Court explains that the authority to use reasonable force to effectuate the detention is inherent in the Summers holding: "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." 11
The Detention Analyzed
Examining Mena's detention under Summers' established principles, the Court found that Mena's detention was "plainly permissible." 12 Mena's detention for the duration of the search was reasonable because a warrant existed for the search of the premises and Mena was an occupant of the premises at the time of the search.
Also reasonable was the officers' use of force in the form of handcuffs to detain Mena and the other three individuals because the governmental interests outweighed the "marginal intrusion." 13 The governmental interests in detaining and using handcuffs are at a maximum when a warrant authorizes a search for weapons and a wanted gang member is known to live at the premises to be searched. In such "inherently dangerous situations," the Court recognizes that the use of handcuffs minimizes the risk of harm to both the officers and the occupants. The number of occupants who are detained adds further justification for the use of handcuffs. Even the two- to three-hour detention in handcuffs was found not to outweigh the government's continuing safety interests. 14
The fact that Mena was not a suspect did not lessen the need for the officers to detain her. Instead, the Court points out what was clear in Summers: when a neutral magistrate has determined police have probable cause to believe contraband exists, the occupant's connection to a home alone justifies a detention of that occupant. 15
Questioning during Detention Allowed
The Ninth Circuit Court of Appeals, in affirming the jury verdict in favor of Mena, ruled that a separate Fourth Amendment violation had occurred when the officers questioned Mena about her immigration status during her detention. The Supreme Court found that ruling to be based upon a faulty assumption that officers are required to have independent reasonable suspicion in order to question an individual about something unrelated to the search because such questioning was a separate Fourth Amendment event. Here, the officers questioned Mena about her immigration status, something completely unrelated to the drive-by gangland shooting that prompted the search.
In holding that the officers did not need reasonable suspicion to ask Mena for her name, birthplace, or immigration status during her detention, the Supreme Court recognized that it has "held repeatedly that mere police questioning does not constitute a seizure."16 Officers may generally ask questions of someone during a detention even if the officers do not have a basis for suspecting that individual, particularly where the questioning does not prolong the length of detention.
The Court pointed to its recent opinion in Illinois v. Caballes17 as being instructive. There, the Court held that a dog sniff performed during a traffic stop did not violate the Fourth Amendment. Of particular import to the Court was the fact that the dog sniff did not extend the duration of the stop. The Court rejected the argument that the "shift in purpose" "from a lawful traffic stop into a drug investigation" was unlawful because reasonable suspicion was absent. 18 Using the Caballes rationale, the Court concluded that because Mena's initial detention was lawful and because the duration of the detention was not prolonged by the questioning, no additional Fourth Amendment justification was required to inquire about Mena's immigration status.
Cautionary Guidance in Concurring Opinions
Although Justice Kennedy concurred in the judgment and the opinion of the Court, he felt it necessary to pen a brief concurring opinion to "help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged." 19 Kennedy points to two somewhat competing "matters of first concern": (1) officer safety and the efficacy of the search, and (2) avoidance of the use of excessive force on individuals who are lawfully detained but who are not themselves suspected of any involvement in criminal activity. 20 The use of handcuffs must be objectively reasonable under the circumstances of each case.
Justice Kennedy cautions that if the search extends to the point when the handcuffs cause "real pain" or "serious discomfort," officers must alter the conditions of the detention to attend to the needs of the detainee. 21 Restraints should be removed if it becomes readily apparent to "any objectively reasonable officer" that removing the handcuffs will not compromise officer safety or interfere with or substantially delay the execution of the search. 22
Despite his expressed concerns, Justice Kennedy nevertheless concluded that the handcuffing of Mena and the other detainees for the two to three hours of the search was not objectively unreasonable. A primary factor that lead him to this conclusion included the fact that the number of detainees outnumbered the officers who were guarding them, a situation that could not be remedied without diverting officers from the search.
Justice Stevens, with whom Justices Souter, Ginsberg, and Breyer joined, concurred in the judgment but wrote a separate opinion. This group of justices was more sympathetic to Mena, choosing to refer to her as "Iris" throughout the concurrence. Justice Stevens takes some exception to the amount of force used to detain Mena during the search:
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. 23
Yet Justice Stevens concludes that the SWAT team's initial actions were reasonable. "When officers undertake a dangerous assignment to execute a warrant to search property that is presumably occupied by violence-prone gang members, it may well be appropriate to use both overwhelming force and surprise in order to secure the premises as promptly as possible." 24 Justice Stevens reluctantly concluded that the use of overwhelming force was necessary here as was the initial handcuffing of "Iris." It would be unreasonable to expect officers entering what they perceive to be a high-risk situation to spend the time necessary to determine whether an individual was a threat before they handcuffed her. 25 Although the Stevens group recognizes that officer safety is, indeed, a weighty factor in determining whether an officer's actions are reasonable, they caution that officer safety alone does not offer justification to authorize handcuffing every occupant of the premises for the duration of every search. This group of justices prefers the case-by-case analysis.
Future Application of Mena
How courts will apply Mena in the future remains to be seen. The few cases that have referred to Mena indicate that courts appear more inclined to follow the cautionary route outlined by the concurring opinions, limiting Mena to situations that involve the presence of contraband and dangerous individuals. The Tenth Circuit Court of Appeals, for instance, refused to interpret Mena as supporting an officer's categorical authority to conduct a pat-down search of any person who seeks to enter an area where a search warrant is being executed, particularly where it would have been clear to the officers executing the search warrant that the circumstances of the search did not involve danger or the presence of contraband. 26
The Ninth Circuit Court of Appeals refused to use Mena to provide justification for the detention and handcuffing of a dentist and his wife during the execution of a search warrant. 27 The court found that while governmental interests in using handcuffs are at a maximum, as they were in Mena, when a warrant authorizes a search for weapons and a known gangster resides on the premises to be searched, those same governmental interests are at a minimum when officers have no belief that weapons will be found and have no belief that the occupants of the premises are dangerous individuals. 28
Other courts may apply Mena as a New York district court did recently. 29 In upholding the handcuffing at gunpoint of an individual, who was soon determined to be a person hunting bugs in the woods rather than an armed and dangerous suspect, the court relied on Mena for the proposition that police are entitled to use overwhelming force in order to take command of a situation that they believe to be high risk. The court stated that it would be unreasonable to require officers to determine whether an individual was in fact a threat before they were entitled to take command of the situation. "Police do not need to risk a knifing or worse to find out" if the person is, in fact, armed and dangerous. 30
What Officers Need to Know
Although the authority to use force to detain occupants of a premises during a search has been reaffirmed, and even strengthened, in Mena, officers should still be instructed that their actions will be analyzed on a case-by-case basis. A reminder as to what factors will likely be considered in determining the reasonableness of a particular use of force in a detention scenario is warranted. The U.S. Supreme Court set forth some of those factors in Graham v. Connor, 31 including the following:
- The severity of the suspected crime
- Whether the detainee is the subject of the investigation
- Whether the detainee poses an immediate threat to the safety and security of the officers
- Whether the person threatens the ability of the police to conduct the search
- Whether the person is resisting or attempting to flee32
Mena should not be construed to sanction detentions that are egregious and that subject those being detained to humiliating, degrading or cruel conditions.
Periodic training in Fourth Amendment jurisprudence is recommended as a way for legal advisors to reinforce the legal guidelines governing searches and seizures and to emphasize the fundamental Fourth Amendment concepts that "reasonable officers" are held to know. ■