When the Fourth Amendment was enacted, a warrant founded on probable cause was required for all searches and seizures. (1) Since that time, much has changed. (2) In fact, police now have the ability to seize an individual without probable cause while executing a search warrant. (3) Just how far the power of that search warrant can be extended is up for debate.
There has been a vast increase in the number of exceptions to the probable cause (4) requirement. In general, this has given police an increased ability to act based on lower levels of suspicion. (5) These probable cause exceptions are "limited exceptions" that apply only when important governmental interests outweigh the intrusion on one's liberties. (6) However, circuit and state courts sometimes overextend these exceptions, allowing for potentially unconstitutional intrusions on one's liberties. (7)
One such probable cause exception that implicates these concerns was established in Michigan v. Summers, (8) where the Supreme Court promulgated a bright-line rule that a search warrant "founded on probable cause implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted." (9) The Court applied a balancing test to determine whether the government's interest in protecting a police officer, preventing a suspect's flight, and obtaining the suspect's assistance with the search outweigh the intrusion on the suspect's liberties. (10) In the past thirty years, circuit and state courts have created various ancillary rules to determine when Summers applies. (11) Although these courts have identified an apparent need to resolve ambiguity in Summers' bright-line rule, the rules created have failed to take into account the balancing-test analysis the Supreme Court used to justify the exception in the first place. (12) Specifically, these courts do not examine whether the balancing-test factors that justified the Summers bright-line rule exist in the given situation before the court.
If courts create rules to determine when Summers applies, they should ensure that the rules take into account all of the governmental interests and the extent of the intrusion present in Summers. Otherwise courts risk impermissibly overextending this probable cause exception. (13) Unfortunately, no rule entirely adheres to the justifications provided in Summers. Neglecting even some of these justifications inherently changes the balancing test that gave life to the Summers bright-line rule. By changing the balancing test, courts risk intruding on individuals' constitutional rights.
This Note will explore the flaws of three rules promulgated by courts applying Summers and suggest a new approach to this probable cause exception. Part I explores the history of exceptions to the probable cause standard and closely examines the Summers decision. (14) Part II analyzes the three main interpretations of the Summers decision used by circuit and state courts, discussing how the courts apply each rule and why each is unsound. Part III suggests a new approach to determine the applicability of Summers. Specifically, it presents a hybrid rule limiting Summers to situations where an individual is coming or going from his or her property and the individual's behavior indicates to the officer that the individual is aware of the search warrant. This rule alleviates many of the concerns inherent in the rules currently used.
I. THE HISTORY OF PROBABLE CAUSE EXCEPTIONS AND SUMMERS
The Fourth Amendment guarantees the "right of the people to be secure ... against unreasonable searches and seizures ... and [that] no [w]arrants shall issue, but upon probable cause." (15) For much of our country's history, searches and seizures were deemed unreasonable absent "probable cause." (16) Probable cause requires "a probability or substantial chance of criminal activity" for police to seize an individual. (17) In 1967, the Supreme Court partially abandoned this high standard in Camara v. …