United States v. Prentiss Watson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4371

PRENTISS WATSON,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:10-cr-00483-RDB-1)

Argued: September 20, 2012

Decided: January 2, 2013

Before NIEMEYER and KEENAN, Circuit Judges, and

Michael F. URBANSKI, United States District Judge for

the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Keenan

wrote the majority opinion, in which Judge Urbanski joined.

Judge Niemeyer wrote a dissenting opinion.

2 UNITED STATES v. WATSON

COUNSEL

ARGUED: Susan Amelia Hensler, OFFICE OF THE FED-

ERAL PUBLIC DEFENDER, Baltimore, Maryland, for

Appellant. Christopher M. Mason, OFFICE OF THE

UNITED STATES ATTORNEY, Baltimore, Maryland, for

Appellee. ON BRIEF: James Wyda, Federal Public

Defender, Baltimore, Maryland, for Appellant. Rod J. Rosen-

stein, United States Attorney, Baltimore, Maryland, for

Appellee.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Prentiss Watson was convicted by a jury of possession of

a firearm by a felon, and of possession of ammunition by a

felon, each in violation of 18 U.S.C. § 922(g). On appeal, he

challenges the district court’s denial of his motion to suppress

an incriminating statement he made after being detained by

police for three hours without probable cause. The detention

occurred inside a convenience store where Watson was work-

ing, while the police awaited authorization for a search war-

rant involving drug-related activities of other persons.

After the district court denied Watson’s motion to suppress,

Watson was convicted of both offenses following a four-day

jury trial. He argues that the district court erred in denying his

motion to suppress because his incriminating statement was

the product of an illegal detention. Upon our review, we hold

that: (1) Watson’s three-hour detention constituted an unlaw-

ful custodial arrest in violation of his Fourth Amendment

rights; (2) the taint of the unlawful custodial arrest was not

purged by the two Miranda warnings provided during his

detention or by any intervening circumstance; and (3) the

erroneous admission of Watson’s statement was not harmless

UNITED STATES v. WATSON 3

error. Accordingly, we vacate Watson’s convictions, and

remand the case to the district court.

I.

Watson worked at a convenience store, which was located

at 2700 Tivoly Avenue (the building) in Baltimore, Maryland.

He also lived in the building, in a room located on the second

floor. There were two other rooms located on that floor.

On February 23, 2010, detectives employed by the Balti-

more City Police Department (the officers) were conducting

surveillance of the block on which the building is located.

After the officers observed some individuals engaging in sus-

pected drug transactions near the building, the officers made

several arrests. Anthony Jackson, who lived in a second-floor

room in the building and was one of the individuals arrested,

had been observed entering and leaving the building during

the course of a suspected drug transaction. The officers

thought that Jackson was carrying a weapon at the time of the

suspected drug transaction1 but, when Jackson was arrested

after leaving the building, the officers did not find a weapon

on his person.

After arresting Jackson, the officers decided to obtain a

search warrant for the building. At that point, one of the offi-

cers, Detective Richard Jamison, began preparing the search

warrant application, while several other officers entered the

building to secure it and to prevent the destruction of evi-

dence. As described by Detective Jamison, law enforcement

officers in Baltimore City generally secure a building as fol-

lows:

[W]e make entry, in general, and always, we check

every location a human being could be to make sure

1

According to one of the officers, Jackson "exhibited characteristics of

an armed person."

4 UNITED STATES v. WATSON

that we’re all safe, and we don’t have armed suspects

in the [building]. We take those individuals. We

secure them in a central location where they could be

watched for everyone’s safety. And then we get the

warrant, assuming we don’t already have a warrant.

The officers’ efforts to secure the building were in confor-

mance with these procedures. Upon entering the building, the

officers encountered two individuals in the convenience store

section of the building, Keta Steele, the owner of the store,

and Watson. The officers immediately instructed Watson and

Steele to "sit down," and advised them of their rights under

Miranda v. Arizona, 384 U.S. 436 (1966). Neither Watson nor

Steele was among the individuals the officers observed engag-

ing in the suspected drug transactions near the building, and

the officers did not have information linking Watson or Steele

to criminal activity of any kind.

The officers kept Watson and Steele in the back area of the

store for about three hours while waiting for Detective Jami-

son to return with a search warrant.2 During this time, the offi-

cers did not inform Watson or Steele that they were free to

leave, nor did the officers ask Watson or Steele any questions

about the criminal activity observed near the building.

When Detective Jamison returned to the building with the

search warrant, the officer who had restrained Watson again

advised him of his Miranda rights while Detective Jamison

began a search of the second-floor rooms. During his search

of the second floor, Detective Jamison observed a shotgun in

the "back room," and returned to the first floor to ask Watson

about the shotgun. Watson replied that he knew nothing about

2

After hearing conflicting testimony regarding the length of Watson’s

detention, the district court determined that Watson was detained by the

officers for three hours. Watson does not argue that the district court

clearly erred in making this factual finding.

UNITED STATES v. WATSON 5

a shotgun, and stated that he lived in the "front room" on the

second floor.3

Detective Jamison returned to the second floor to search the

front room, where he observed a zipped toiletry bag lying

near Watson’s closet.4 When Detective Jamison opened the

bag, he found a revolver and ammunition of various types.

After recovering these items, Detective Jamison asked Wat-

son about them. At that time, Watson replied, referring to the

revolver: "[T]hat old thing, it doesn’t even work."

Before trial, Watson filed a motion to suppress his state-

ment on Fourth Amendment grounds, seeking to exclude from

evidence the response he made to Detective Jamison about the

revolver. Watson argued that he was subjected to an unlawful

detention without probable cause, and that his statement

should be suppressed as the product of an illegal arrest. The

district court denied Watson’s motion.

The case proceeded to trial, after which the jury found Wat-

son guilty of both counts of violating 18 U.S.C. § 922(g).5

The jury’s deliberations lasted for a period of more than nine

hours, during which the jury twice asked the court to read por-

tions of Detective Jamison’s testimony concerning Watson’s

statement about the revolver.

The district court sentenced Watson to two concurrent

terms of imprisonment of 31 months. Watson filed a timely

notice of appeal.

3

Anthony Jackson lived in the "middle room" on the second floor.

4

Detective Jamison also located items of paperwork in this room that

bore Watson’s name.

5

Watson’s firearm conviction was based solely on his possession of the

revolver.

6 UNITED STATES v. WATSON

II.

On appeal, Watson challenges only the district court’s

denial of his motion to suppress. We review the district

court’s factual findings regarding the motion to suppress for

clear error, and the court’s legal conclusions de novo. United

States v. Burgess, 684 F.3d 445, 452 (4th Cir. 2012); United

States v. Edwards, 666 F.3d 877, 882 (4th Cir. 2011). When,

as here, a motion to suppress has been denied, we view the

evidence presented in the light most favorable to the govern-

ment. United States v. McBride, 676 F.3d 385, 391 (4th Cir.

2012).

A.

We first address the question whether Watson was "seized"

within the meaning of the Fourth Amendment. A seizure war-

ranting Fourth Amendment protection occurs when in view of

the totality of the circumstances, a reasonable person would

not feel free to leave or otherwise to terminate an encounter

with police. United States v. Lattimore, 87 F.3d 647, 653 (4th

Cir. 1996) (citing Florida v. Bostick, 501 U.S. 429, 438

(1991)). As a general rule, a seizure requires either the use of

physical force or, absent the use of such force, a submission

to an officer’s assertion of authority. California v. Hodari D.,

499 U.S. 621, 626 (1991).

The government concedes that Watson was "seized" at the

time of his initial detention. We agree that a seizure occurred

here, because a reasonable person in Watson’s position would

not have felt "free to leave" the area of the building in which

he was held, or otherwise to terminate the encounter with the

officers. When the officers entered the building, they

instructed Watson to "sit down," informed him of his Miranda

rights, and kept him confined to a limited area during the

entire three-hour detention. Accordingly, the officers’ actions

effected a seizure of Watson, within the meaning of the

Fourth Amendment.

UNITED STATES v. WATSON 7

B.

We turn to consider the issue whether Watson’s seizure and

detention violated his rights under the Fourth Amendment,

which protects individuals from "unreasonable searches and

seizures." U.S. Const. amend. IV. In cases involving a sei-

zure, the standard of "reasonableness" typically is satisfied by

a showing that the police had probable cause to conclude that

the individual seized was involved in criminal activity.

Dunaway v. New York, 442 U.S. 200, 213-14 (1979). This

standard of probable cause constitutes "the minimum justifi-

cation necessary to make the kind of intrusion involved in an

arrest ‘reasonable’ under the Fourth Amendment." Id. at 208.

As a general rule, "an official seizure of the person must be

supported by probable cause, even if no formal arrest is

made." Michigan v. Summers, 452 U.S. 692, 696 (1981) (cit-

ing Dunaway, 442 U.S. at 212-13). The government bears the

burden of demonstrating that a warrantless seizure is reason-

able. See Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984);

Vale v. Louisiana, 399 U.S. 30, 35 (1970); United States v.

Jeffers, 342 U.S. 48, 51 (1951).

i.

In analyzing the reasonableness of a seizure that is not sup-

ported by probable cause,6 courts are required to evaluate "the

law enforcement interest and the nature of the ‘articulable

facts’ supporting the detention." See Summers, 452 U.S. at

702. This analysis entails a balancing test because, under the

Fourth Amendment, "reasonableness ‘depends on a balance

between the public interest and the individual’s right to per-

sonal security free from arbitrary interference by law offi-

cers.’" United States v. Stanfield, 109 F.3d 976, 979 (4th Cir.

1997) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109

(1977)) (other citations omitted). Thus, to determine whether

6

The government concedes, and we agree, that the officers did not have

probable cause to detain Watson.

8 UNITED STATES v. WATSON

Watson’s seizure and continued detention were reasonable,

"we [must] balance[ ] the intrusion on [Watson’s] Fourth

Amendment interests against [the] promotion of legitimate

governmental interests." Maryland v. Buie, 494 U.S. 325, 331

(1990) (citations omitted); see also United States v. Legg, 18

F.3d 240, 245 (4th Cir. 1994) (citing Buie).

In the present case, the government relies on Illinois v.

McArthur, 531 U.S. 326 (2001), advancing two reasons to

justify the intrusion on Watson’s privacy and liberty: (1) pre-

venting the destruction of evidence; and (2) ensuring the

safety of the police officers present in the building. In con-

ducting the balancing test required by Buie, we conclude that

the cited governmental objectives, although very important as

a general matter, were not implicated sufficiently in the pres-

ent case to justify the significant intrusion on Watson’s Fourth

Amendment rights.

We observe that the facts of this case are highly unusual,

if not unique. The facts framing our analysis include the

three-hour detention of an individual, whom the police

encountered in a building open to the public, at a time when

a search warrant had not been authorized. During the entire

course of that three-hour detention, the police had no reason

to believe that the detained individual was linked to any crim-

inal activity, including the evidence sought in the search war-

rant application.

Our "reasonableness" inquiry is guided by principles

applied in several cases, including the Supreme Court’s deci-

sions in Summers and McArthur. We first consider the

Supreme Court’s decision in Summers, which addressed the

constitutionality of a seizure and detention incident to the exe-

cution of a search warrant. There, the police had obtained a

search warrant for a residence before detaining for the dura-

tion of the search an occupant of the premises seen leaving

the house.7 Id. at 693. The Court assumed that the detention

7

The police quickly learned that this individual was the owner of the

house to be searched.

UNITED STATES v. WATSON 9

was not supported by probable cause, but held that the seizure

nevertheless was reasonable because the police had obtained

the search warrant before the seizure occurred. Id. at 701-05.

In its analysis, the Court stated that it was "[o]f prime

importance" in assessing the legality of the defendant’s deten-

tion that "the police had obtained a warrant to search [his]

house for contraband." Id. at 701. The Court observed that

before the defendant was seized, a neutral and detached mag-

istrate already had "authorized a substantial invasion of the

privacy of the persons who resided there," id., and, therefore,

the search warrant "provide[d] an objective justification for

the detention." Id. at 703. Thus, the prior authorization of the

search warrant at the time the defendant was detained was the

foundation of the Summers holding.

Based on these considerations, the Court held that for pur-

poses of the Fourth Amendment, a search warrant authorized

upon a finding of probable cause "implicitly carries with it the

limited authority to detain the occupants of the premises while

a proper search is conducted."8 Id. at 705. The Court also left

open the possibility that the seizure of a person could be law-

ful in the absence of a search warrant, if justified by exigent

circumstances. Id. at 702 n.17.

The Supreme Court later confronted such a situation in

McArthur. There, the Court held that police officers did not

violate the Fourth Amendment when they prevented a defen-

dant from entering his home for about two hours while the

officers obtained a search warrant for the premises. 531 U.S.

at 328. The officers took this action after learning from the

defendant’s wife that the defendant "had dope in there," and

that she had seen him "slid[e] some dope underneath the

couch." Id. at 329.

8

The Court nevertheless cautioned that its holding may not be applica-

ble in cases involving a "prolonged detention." Id. at 705 n.21.

10 UNITED STATES v. WATSON

The Supreme Court characterized the officers’ actions as a

"temporary seizure."9 Id. at 330. The Court held that the offi-

cers’ conduct was reasonable on several grounds, including

that the officers had probable cause to believe the defendant

was harboring illegal narcotics in his residence, and that the

officers reasonably feared the defendant would destroy the

drugs unless he was restrained until after the search was com-

pleted. Id. at 332. The Court further observed, with approval,

that the defendant was restrained in a significantly less restric-

tive manner than would have occurred in the case of an arrest,

because he was prevented only from entering his residence

unaccompanied. Id. at 332. Thus, the Court concluded that the

officers made reasonable efforts to reconcile their law

enforcement objectives with the defendant’s right to personal

privacy. Id.

In our view, the holding in McArthur is inapposite to the

present case for several reasons: (1) the officers did not sus-

pect Watson of engaging in any criminal activity at the time

of his detention; (2) the officers did not have any reason to

believe that Watson would destroy any contraband in the

building; (3) the restraint imposed on Watson was more

severe, both in character and in duration, than the restraint

imposed on the defendant in McArthur; and (4) the present

record lacks any justification for the length of the detention

that occurred in this case. We discuss these distinctions

below.

Most significantly, we distinguish McArthur on the basis

that the police there had direct evidence that drugs belonging

to the defendant would be found inside his home. See id. at

9

It is unclear from the Court’s opinion whether the Court used the term

"seizure" with reference to the defendant’s residence, to the defendant

himself, or to both the residence and the defendant. However, this use of

the term "seizure" does not need to be clarified for purposes of the present

case, because the holding in McArthur is distinguishable irrespective of

the focus of the Court’s reference.

UNITED STATES v. WATSON 11

329. Here, however, it is uncontested that the police did not

suspect Watson of any criminal activity, and lacked any basis

for connecting Watson to the contraband sought in the search

warrant application. Thus, although the seizure of the building

may have been supported by probable cause, the seizure of

Watson himself was not so supported, in contrast to the sei-

zure that occurred in McArthur. Cf. id. at 334. Likewise, the

police had no basis to conclude that Watson might attempt to

destroy or hide the evidence sought in the search warrant appli-

cation.10

Although the Supreme Court could have done so in

McArthur, the Court did not announce a bright-line rule per-

mitting police to detain any person found on property while

the officers are awaiting authorization of a search warrant for

that property. Rather, the Court focused on the existence of a

connection between the defendant and the contraband that

was the subject of the search warrant application. See id. at

332.

We also observe that McArthur involved a restraint that

was different in both character and duration from the restraint

imposed on Watson. In McArthur, the defendant merely was

prevented from entering his residence unaccompanied,

because the police reasonably feared that he would destroy

the drugs identified by his wife. The restraint imposed on

Watson, however, was not so limited or tailored. Rather than

removing Watson from the building and prohibiting his reen-

try, the police kept Watson confined inside the building the

entire time that they were preparing and awaiting authoriza-

tion of the search warrant.

We further note that, in considering the length of the defen-

dant’s detention in McArthur, the Supreme Court observed

10

We observe that the record does not show that the police even were

aware that Watson lived in the building until after Detective Jamison

returned with the signed warrant.

12 UNITED STATES v. WATSON

that "as far as the record reveals," the defendant’s two-hour

restraint "was no longer than reasonably necessary for the

police, acting with diligence, to obtain the warrant." Id. at

332-33. In contrast, the record before us lacks any evidence

explaining the reason why it took the officers three hours to

obtain the search warrant and return to the building.11

Although the district court stated that "[t]he warrant was

approved as quickly as possible in light of the caseload that

the state judges in Baltimore need to deal with," there is no

evidence supporting this conclusion.

In sum, each of the reasons justifying the police conduct in

McArthur is either absent here or weighs against a conclusion

that the officers reasonably seized and detained Watson.

Accordingly, the holding in McArthur fails to support the dis-

trict court’s denial of Watson’s motion to suppress.

ii.

Because the holdings in Summers and McArthur do not

provide support for Watson’s prolonged detention, and in the

absence of any precedential cases supporting the govern-

ment’s argument, we return to the "ultimate standard"

embodied in the Fourth Amendment, the standard of reason-

ableness. See Summers, 452 U.S. at 699-700. As we noted

above, "in determining reasonableness, we [must] balance[ ]

the intrusion on the individual’s Fourth Amendment interests

against [the] promotion of legitimate governmental objec-

tives." Buie, 494 U.S. at 331.

We need not belabor the point that Watson’s three-hour

detention in a confined space and under constant police sur-

veillance was a substantial intrusion on his Fourth Amend-

11

The only evidence in the record concerning the amount of time

involved in Detective Jamison’s efforts to obtain the search warrant are his

notes reflecting that the warrant was signed at 3:34 p.m., and that he deliv-

ered the signed warrant to the officers present in the building at 3:45 p.m.

UNITED STATES v. WATSON 13

ment rights. Against this substantial intrusion, we consider the

law enforcement objectives underlying the officers’ decision

to detain Watson while the search warrant was obtained,

namely, the need to preserve evidence and the concern for

officer safety.

We do not question the proposition that these two objec-

tives are important law enforcement goals. They are. With

respect to officer safety, we observe that the protection of

police officers is of particular concern in cases in which both

drugs and firearms are the subject of a pending search war-

rant. As the Supreme Court explained in Buie, police officers

need to be assured that the persons with whom they are deal-

ing are not "armed with, or able to gain immediate control of,

a weapon that could unexpectedly and fatally be used against

[the officers]." 494 U.S. at 333 (holding that police did not

need "probable cause" to conduct a "protective sweep" of a

residence when executing an arrest warrant); see also United

States v. Laudermilt, 677 F.3d 605, 610 (4th Cir. 2012) (dis-

cussing Buie). Thus, in securing the building, it was reason-

able for the officers here to locate the individuals present in

the building and to bring them to a central location.

In the absence of probable cause, however, an intrusion on

an individual’s Fourth Amendment rights must be "strictly

circumscribed by the exigencies which justify its initiation."

Terry v. Ohio, 392 U.S. 1, 26 (1968). For instance, as dis-

cussed in Buie, police officers may conduct a "protective

sweep" of a residence without probable cause, so long as the

search "extend[s] only to a cursory inspection of those spaces

where a person may be found," and "lasts no longer than is

necessary to dispel the reasonable suspicion of danger and in

any event no longer than it takes to complete the arrest and

depart the premises." 494 U.S. at 335-36 (emphasis added).

Thus, the extent of any Fourth Amendment intrusion

undertaken for purposes of officer safety must be "no more

than necessary to protect the officer from harm." Buie, 494

U.S. at 333 (discussing Terry) (emphasis added).

14 UNITED STATES v. WATSON

We are not aware of any Supreme Court case or federal

appellate decision permitting a three-hour detention of an

occupant of a building who lacks any specific connection to

suspected criminal activity, while police obtain a warrant to

search that building.12 Moreover, the detention that occurred

in the present case lasted significantly longer than any reason-

able period the officers needed to alleviate potential threats to

their safety. At some point during Watson’s detention, likely

close to its inception, any potential threat that Watson posed

to the officers’ safety had dissipated. Thus, at that point, any

reasonable justification for continuing to detain Watson dissi-

pated as well.

This is not a case in which there was any evidence pres-

ented to the district court suggesting that the police were rea-

sonably concerned that the release of Watson, and the owner

of the store, Steele, could endanger the officers who were

awaiting the issuance of the search warrant. There is no evi-

dence in the record that Watson posed any risk to officer

safety, and that his continued seizure was necessary for that

reason. Further, the mere supposition that Watson, if he had

been removed from the building, could have alerted others

concerning the police activity in the building did not provide

such a justification to detain Watson. The present record lacks

any evidence that Watson knew individuals who had not been

detained, but were connected to the suspected criminal activ-

ity, and who could have posed a threat to the officers’ safety.

Therefore, the record fails to support the need for even a brief

extension of Watson’s initial detention until additional offi-

cers could be brought to the area to monitor the situation.

Accordingly, in "balanc[ing] the intrusion on [Watson’s]

Fourth Amendment interests against [the] promotion of legiti-

mate governmental interests," Buie, 494 U.S. at 331, we hold

that the evidence in this case weighs decisively in Watson’s

12

As explained later in this opinion, the four cases cited by our col-

league in dissent are inapposite.

UNITED STATES v. WATSON 15

favor. There simply is nothing in the record in this case sug-

gesting that the government has met its burden of demonstrat-

ing a legitimate public interest in detaining Watson for three

hours. Thus, we conclude that Watson’s three-hour detention

was unreasonable and constituted an unlawful custodial arrest

in violation of his Fourth Amendment rights.

iii.

We observe that our dissenting colleague would create a

new rule of constitutional law allowing the police to detain

citizens for a substantial amount of time, despite the absence

of a search warrant or the absence of any information con-

necting those citizens to participation in criminal activity. In

reaching this conclusion, the dissent misconstrues our holding

and broadens, without foundation, the holdings of cases the

dissent cites to support its view.

a.

Contrary to the dissent’s contention, our holding does not

impose a requirement that after completing a Buie protective

sweep, the police must have probable cause to support the

continued detention of an occupant of a building while a

search warrant is being obtained. Because our holding is

based on the officers’ admission that the police had no infor-

mation linking Watson to criminal activity in the building, we

need not reach, and do not consider, the level of suspicion

required to detain an individual in these circumstances.

We further observe that the Supreme Court has never

accepted the view advanced by the dissent that a person’s

mere proximity to a location of suspected criminal activity

allows police to subject that individual to a prolonged deten-

tion in the absence of a search warrant. Contrary to the dis-

sent’s view, a building and a person present in that building

are not treated the same when conducting a Fourth Amend-

ment analysis.

16 UNITED STATES v. WATSON

b.

The dissent’s reliance on certain cases to support its view,

particularly its discussion of Summers, reflects a misreading

of the holdings in those cases. The dissent discusses Summers

as if the presence of a search warrant at the time of the deten-

tion was a mere afterthought in the Court’s analysis. How-

ever, as we already have stated, the presence of a search

warrant was central to the Court’s decision. The Court began

its analysis in Summers by stating that "[o]f prime importance

in assessing the intrusion [on the defendant’s privacy and lib-

erty] is the fact that the police had obtained a warrant to

search [defendant’s] house for contraband." 452 U.S. at 701

(emphasis added). And, as noted above, the Court emphasized

that, at the time of the detention, a magistrate judge had

already "authorized a substantial invasion of the privacy" of

the persons residing in the place to be searched. Id.

Later in the Summers opinion, the Court reiterated the

importance of the fact that the police already had obtained a

search warrant at the time the resident was detained. The

Court stated that "the detention represents only an incremental

intrusion on personal liberty when the search of a home has

been authorized by a valid warrant."13 Id. at 703 (emphasis

added).

13

In a footnote, the Court expanded on the importance of a magistrate,

rather than an officer on the scene, making decisions that would otherwise

infringe on a citizen’s Fourth Amendment rights. Quoting from the

Court’s opinion in Johnson v. United States, 333 U.S. 10 (1948), the Court

in Summers observed that

[t]he point of the Fourth Amendment, which often is not grasped

by zealous officers, is not that it denies law enforcement the sup-

port of the usual inferences which reasonable men draw from evi-

dence. Its protection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead of being

judged by the officer engaged in the often competitive enterprise

of ferreting out crime. Any assumption that evidence sufficient to

support a magistrate’s disinterested determination to issue a

UNITED STATES v. WATSON 17

Despite this unequivocal language, the dissent maintains

that the holding in Summers supports a detention in the

absence of a warrant. Such a conclusion, however, would ren-

der superfluous the Court’s explicit and extensive discussion

of the importance of the existing search warrant in its analysis.14

The dissent also quotes out of context a footnote in Sum-

mers, which states that "[t]he fact that our holding today deals

with a case in which the police had a warrant does not, of

course, preclude the possibility that comparable police con-

duct may be justified by exigent circumstances in the absence

of a warrant." 452 U.S. at 702 n.17. In that footnote, the Court

did not imply that such a detention would be permissible, but

merely reserved that issue for future determination. Thus, the

dissent’s reliance on this language of "possibility" as the cen-

terpiece of its analysis is fundamentally misplaced.15

search warrant will justify the officers in making a search without

a warrant would reduce the Amendment to a nullity and leave the

people’s homes secure only in the discretion of police officers.

. . . When the right of privacy must reasonably yield to the right

of search is, as a rule, to be decided by a judicial officer, not by

a policeman or government enforcement agent.

Summers, 452 U.S. at 703 n.18 (quoting Johnson, 333 U.S. at 13-14).

14

For these reasons, the dissent’s reliance on Muehler v. Mena, 544 U.S.

93 (2005), also is not persuasive. The Court’s opinion in Muehler, relying

exclusively on Summers, recites the unremarkable proposition that "offi-

cers executing a search warrant for contraband have the authority ‘to

detain the occupants of the premises while a proper search is conducted.’"

Muehler, 544 U.S. at 98 (quoting Summers, 452 U.S. at 705). Applying

this well-settled principle, the Court held that "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." Id. (emphasis added). Similarly, as the

dissent itself observes, the search and detention at issue in United States

v. Photogrammetric Data Servs., 259 F.3d 229, 239 (4th Cir. 2001),

occurred after the police had obtained a warrant.

15

We further observe that even if the holding in Summers is extended

at a future date such that exigent circumstances, as a general matter, could

18 UNITED STATES v. WATSON

Moreover, if the dissent’s reading of that footnote were an

accurate portrayal of the law, the Supreme Court simply

would have resolved the legality of the seizure at issue in

McArthur on the basis that the police had probable cause to

search the defendant’s mobile home. That fact, however, was

but one of several reasons that the Court employed to uphold

the seizure in that case. Most importantly, independent of the

probable cause determination, the Supreme Court analyzed

the specific facts of the case and determined that the police

reasonably concluded that the defendant, who had been iden-

tified as the owner of illegal drugs stored in his home, would

destroy the drugs before the officers could return with a war-

rant. See 531 U.S. at 332.

The dissent’s reliance on three circuit court cases fares no

better than its reliance on Summers. In the first such case,

United States v. Cephas, 254 F.3d 488 (4th Cir. 2001), this

Court held that exigent circumstances justified the police offi-

cers’ warrantless entry into the defendant’s residence. Signifi-

cantly, the defendant in that case did not challenge the legality

of his detention.16 Id. at 494 (stating that the legal issue under

consideration "is whether Sergeant Shapiro’s warrantless

entry into Cephas’s apartment was lawful"). Thus, our deci-

sion in Cephas is inapposite here.

justify the prolonged detention of a suspect while a warrant is obtained,

such an extension would not automatically answer the question posed in

this case. In our view, it is doubtful whether the type of "exigent circum-

stances" referenced by the Court in Summers would encompass the deten-

tion, for a period of three hours, of persons who are not suspected of

participating in criminal activity.

16

Our decision in Cephas is also distinguishable on the basis that, once

inside the apartment, the officers observed evidence of drug activity in

plain view that was near the persons who were detained. See 254 F.3d at

491. Thus, in Cephas, in contrast to the present case, the police officers

had individualized suspicion that the defendant was involved in criminal

activity.

UNITED STATES v. WATSON 19

Similarly, in the out-of-circuit cases relied upon by the dis-

sent, United States v. Limares, 269 F.3d 794 (7th Cir. 2001),

and United States v. Ruiz-Estrada, 312 F.3d 398 (8th Cir.

2002), the defendants did not challenge the legality of their

detention in the absence of a search warrant. Rather, the

defendants in both of those cases challenged the warrantless

entry that occurred. See Limares, 269 F.3d at 798 (Limares

"contends that the agents violated the [F]ourth [A]mendment

by entering 2705 S. Harrison [Street] in advance of [the] war-

rant" being issued); Ruiz-Estrada, 312 F.3d at 404 (Ruiz-

Estrada "claims the officers illegally entered the apartment

absent exigent circumstances and exploited their presence

inside the apartment to obtain information to use in the affida-

vit filed in support of a search warrant").

We are aware of no authority, and the dissent has cited

none, that supports the dissent’s suggested expansion of

police power at the expense of settled Fourth Amendment

principles. Although there may well be legitimate law

enforcement objectives that would be furthered by allowing

police to detain individuals in the posture of Watson and

Steele in the absence of a warrant, those objectives must yield

to the protections guaranteed by the Fourth Amendment.

C.

We next consider the issue whether Watson’s incriminating

statement should be suppressed as the product of his unlawful

custodial arrest. The Supreme Court long has held that an

incriminating statement obtained by exploitation of an illegal

arrest may not be used against a criminal defendant. Brown v.

Illinois, 422 U.S. 590, 603 (1975); Wong Sun v. United States,

371 U.S. 471, 484-86 (1963); see also Kaupp v. Texas, 538

U.S. 626, 632-33 (2003) (per curiam) (vacating conviction on

basis of admission of confession obtained as result of unlaw-

ful arrest); United States v. Seidman, 156 F.3d 542, 548-49

(4th Cir. 1998) (discussing Wong Sun and Brown decisions).

In evaluating the admissibility of a defendant’s statement

20 UNITED STATES v. WATSON

made after an illegal arrest, the government bears the burden

of establishing that the defendant’s statement was "‘suffi-

ciently an act of free will to purge the primary taint.’" Brown,

422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486).

The determination whether there was a "break" in the

causal chain between an unlawful arrest and a defendant’s

incriminating statement depends on the facts of each specific

case. Id. In analyzing the admissibility of such a statement,

we consider several factors, including: (1) the "purpose and

flagrancy of the official misconduct"; (2) whether Miranda

warnings were given to the defendant; (3) the "temporal prox-

imity of the arrest and the confession"; and (4) the presence

of intervening circumstances. Brown, 422 U.S. at 603-04; see

also United States v. McKinnon, 92 F.3d 244, 247 (4th Cir.

1996) (discussing Brown factors).

In the present case, we first observe that although the very

nature of the prolonged detention was inherently coercive, the

record does not show that any flagrant police misconduct

occurred. Cf. Brown, 422 U.S. at 605 (concluding that the

"impropriety of the arrest was obvious" and "had a quality of

purposefulness" that was "calculated to cause surprise, fright,

and confusion"). We also observe that the officers provided

Miranda warnings to Watson on two separate occasions, once

when he was first detained and again when Detective Jamison

returned to the building with the signed search warrant.

The issuance of Miranda warnings, however, does not

automatically cure the taint of an illegal arrest. Brown, 422

U.S. at 602, 604; see also United States v. Sanders, 954 F.2d

227, 231 (4th Cir. 1992) (citing Brown). The record also must

satisfy the government’s burden of showing a break in the

causal chain between the defendant’s unlawful arrest and his

incriminating statement. Brown, 422 U.S. at 603-04. Here,

this "temporal proximity" factor weighs strongly in Watson’s

favor because he was not freed from the officers’ custody at

any point between his initial seizure and the time he made his

UNITED STATES v. WATSON 21

incriminating statement. Thus, in this respect, the causal con-

nection between the illegality and the incriminating statement

remained unbroken.

Additionally, the record fails to show that there were any

"intervening circumstances" attenuating the illegal arrest from

Watson’s statement. See id. at 603-04. The officers restrained

Watson continuously for three hours in the same location,

where they later obtained his statement about the gun. In

short, Watson’s statement occurred as part of an uninterrupted

course of events, during which "there was no intervening

event of significance whatsoever."17 See id. at 604. Accord-

ingly, we hold that the district court erred in denying Wat-

son’s motion to suppress because there was no break in the

causal connection between his unlawful custodial arrest and

his statement, rendering the statement the product of his

unlawful arrest rather than "an act of free will unaffected by

the initial illegality." See id. at 603.

D.

Having concluded that Watson’s incriminating statement

was improperly admitted into evidence, we now must address

the impact of that error on Watson’s trial. See Arizona v. Ful-

minante, 499 U.S. 279, 295 (1991) (concluding that harmless

error analysis applies to coerced or involuntary statements);

United States v. Blauvelt, 638 F.3d 281, 290 (4th Cir. 2011)

(applying harmless error analysis to incriminating statement

made by defendant following his detention, which was

assumed to be unlawful). In assessing whether a constitutional

error was harmless, we determine whether the admission of

17

We reject the government’s argument, offered without any supporting

authority, that the officers’ discovery of the firearm and ammunition was

a qualifying "intervening event" under the holding in Brown. The record

does not provide any indication that, absent the unlawful custodial arrest,

Watson would have been present during the search when the officers dis-

covered the toiletry bag and its contents.

22 UNITED STATES v. WATSON

the statement at issue "was harmless beyond a reasonable

doubt, such that it is clear that a rational fact finder would

have found [the defendant] guilty absent the error." United

States v. Poole, 640 F.3d 114, 119-20 (4th Cir. 2011) (citing

Chapman v. California, 386 U.S. 18, 24 (1967)).

Upon our review of the record, we are unable to conclude

that the admission of Watson’s statement was harmless

beyond a reasonable doubt. The district court properly

instructed the jury that to find Watson guilty of the offenses

charged, the government was required to prove beyond a rea-

sonable doubt that Watson "knowingly possessed" the firearm

and ammunition that was found in the toiletry bag. The dis-

trict court also instructed the jury regarding the government’s

burden to prove that Watson possessed these items "purpose-

fully and voluntarily, and not by accident or mistake." Fur-

ther, because the government sought to establish Watson’s

constructive, rather than actual, possession of the items, the

court instructed the jury that to find Watson guilty of the

charges, the jury had to find beyond a reasonable doubt that

Watson "had the power and intention to exercise control over

either the firearm or the ammunition."18

Watson’s theory at trial, as emphasized during his closing

argument, was that he did not own or otherwise knowingly

possess the revolver or ammunition, but rather that the bag

containing those items was "stashed" in Watson’s closet by

Jackson after he observed police activity near the building.

The defense noted that Jackson and Watson both lived on the

second floor of the building, and that Jackson had a lock on

the door to his room but that Watson did not. The defense fur-

ther noted that Jackson was a drug dealer known to carry fire-

arms, and that the officers believed Jackson was carrying a

firearm when he was observed earlier conducting a suspected

18

Neither party contends that the district court’s instructions to the jury

were erroneous.

UNITED STATES v. WATSON 23

drug transaction near the building, but that he was unarmed

when arrested after leaving the building.

In contrast, the evidence presented by the government to

prove that Watson knowingly possessed the firearm and

ammunition was: (1) that the contraband items were found in

Watson’s room, which also contained other items belonging

to Watson; and (2) Watson’s statement regarding the gun.

There was no other evidence tending to establish that Watson

owned or was aware of the firearm or ammunition found in

the toiletry bag.

The fact that Watson owned the other items found in his

bedroom did not mandate a conclusion that he also owned the

toiletry bag containing the revolver and the ammunition.

Without the evidence of Watson’s statement, the jury may

have chosen to accept the defense theory that Jackson, upon

seeing a police presence, "stashed" the items in Watson’s

unlocked room.

The record also establishes that Watson’s statement was a

focal point of the jury’s deliberations, which lasted more than

nine hours. During this time, the jury submitted to the court

two questions directly addressing Watson’s statement. First,

the jury requested that the court read "Detective Jamison’s

testimony when he showed the defendant the bag and asked

about the gun." Second, the jury asked that the court "read

from the transcript of the direct examination of Det. Jamison

questions pertaining to the gun – did [Det.] Jamison say the

words ‘gun in your room’ in the context of presenting the

bag." (Emphasis in original). In response to this last request,

the court read to the jury Detective Jamison’s testimony

detailing Watson’s statement. Less than 30 minutes after

being read that testimony, the jury reached its verdict finding

Watson guilty.

We are unable to conclude "beyond a reasonable doubt"

that "a rational fact finder would have found [Watson] guilty

24 UNITED STATES v. WATSON

absent the error." See Poole, 640 F.3d at 119-20. Three rea-

sons support our conclusion: (1) the absence of direct evi-

dence showing that Watson possessed the revolver and the

ammunition; (2) the defense’s theory, albeit speculative and

circumstantial in its own right, that Jackson planted the fire-

arm in Watson’s room; and (3) the jury’s questions relating to

Watson’s statement. Therefore, we hold that the district

court’s erroneous admission of Watson’s statement cannot be

deemed harmless.

III.

In sum, we conclude that Watson was seized without prob-

able cause, and that his three-hour detention constituted an

unlawful custodial arrest in violation of his Fourth Amend-

ment rights. We further hold that the district court erred in

denying Watson’s motion to suppress, because his incriminat-

ing statement was the product of his unlawful custodial arrest.

Finally, we hold that the erroneous admission of Watson’s

statement was not harmless. Accordingly, we vacate Watson’s

convictions, and remand the case to the district court for fur-

ther proceedings.

VACATED AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

Baltimore City police officers concededly had probable

cause to believe that heroin was being stored at and distrib-

uted from a building known as 2700 Tivoly Avenue in Balti-

more. Relying on that probable cause and the exigent

circumstances of possibly losing evidence, the officers

entered the building; conducted a protective sweep of it; and

detained two occupants until the officers were able to obtain

a search warrant and search the building—a period of approx-

imately three hours. As a result of the search, the officers

found a revolver and ammunition in a room that one of the

occupants, Prentiss Watson, acknowledged was his. Watson

UNITED STATES v. WATSON 25

was indicted for being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1).

Contending that he was detained without probable cause, in

violation of his Fourth Amendment rights, Watson filed a

motion to suppress statements he made to officers in which he

identified the room that was his and denied the operability of

the firearm found there, arguing that the statements were the

fruit of an illegal detention and should be suppressed. The dis-

trict court denied the motion, and a jury convicted Watson for

the illegal possession of the firearm and ammunition.

The majority today vacates Watson’s convictions, conclud-

ing that without probable cause to seize Watson, his detention

for the three-hour period during which police officers

obtained a warrant and conducted the search was illegal.

Ignoring the suspicion created by Watson’s presence in a

building as to which officers had probable cause to believe

was the site of criminal activity, see Michigan v. Summers,

452 U.S. 692, 703-04 (1981), and the legitimate interests of

law enforcement officers in detaining occupants of the build-

ing, see id. at 702-03, the majority concludes that without

probable cause as to whether Watson himself committed a

crime, the police officers were required to release him after

conducting an initial protective sweep of the building.

This alarming ruling vitiates the long-standing police prac-

tice of detaining occupants found in a building, for which

probable cause exists, while a search warrant is obtained and

the building is searched, and raises new barriers to the use of

such law enforcement procedures. See, e.g., United States v.

Cephas, 254 F.3d 488, 491, 495-96 (4th Cir. 2001) (noting

that law enforcement officers, who had made a justified war-

rantless entry into an apartment, detained eight or nine occu-

pants while a search warrant was obtained). Other circuits

likewise have recognized that police practice. See, e.g.,

United States v. Ruiz-Estrada, 312 F.3d 398, 404 (8th Cir.

2002) ("The act of securing the apartment [including its two

26 UNITED STATES v. WATSON

occupants] while awaiting a search warrant comports with the

Fourth Amendment"); United States v. Limares, 269 F.3d

794, 799 (7th Cir. 2001) ("The agents respected the privacy

of those found within [the building] by securing the premises

but not conducting a search until the [search] warrant had

been issued. This is a model of good, even over-cautious,

police work").

With profound concern, I respectfully dissent.

I

Deputy Major Darryl DeSousa of the Baltimore City Police

Department, along with other police officers, began conduct-

ing covert surveillance for drug trafficking in the 2700 block

of Tivoly Avenue, Baltimore, at approximately 11:00 a.m. on

February 23, 2010. DeSousa reported, "There was a lot going

on in that block at the time." Detective Richard Jamison, who

was initially receiving radio reports from DeSousa, stated, "I

got the impression that things happened quicker than anyone

anticipated them happening, because we were trying to get

[arrest teams] from everywhere we could due to the sheer vol-

ume of, I guess, purchasers, customers." DeSousa’s observa-

tions included watching Leroy Smith escort several

individuals to a position in an alley across the street from

2700 Tivoly Avenue, where Smith had them wait while he

crossed the street and met with Anthony Jackson in the alley

next to 2700 Tivoly Avenue. The building known as 2700

Tivoly Avenue was an end unit row house that had a front

entrance on Tivoly Avenue and a side entrance on the alley.

A convenience store was operated from the front of the first

floor, and a storeroom was located at the rear. Three bed-

rooms and a bathroom were located on the second floor. After

Smith and Jackson spoke briefly, DeSousa observed Jackson

enter 2700 Tivoly Avenue through the side door and emerge

from the building a short time later, holding a plastic bag that

he handed to Smith. Smith then went back across the street to

hand small items from the plastic bag to the waiting individu-

UNITED STATES v. WATSON 27

als in exchange for cash. During the course of his observa-

tions, DeSousa observed Jackson go in and out of 2700

Tivoly Avenue "on a regular basis."

Based on these observations, DeSousa directed several

arrest teams to the area, and those teams, acting on DeSousa’s

information, then began arresting purchasers who had left the

site. At that time, they arrested Smith, Stanley Brody, and

Bryan Crawford and, in connection with these arrests, recov-

ered gel caps containing heroin.

As police officers arrived at 2700 Tivoly Avenue, DeSousa

saw Jackson grab his waistband in a way that suggested he

was armed. Jackson then ran into the side entrance of the

building. A short time later, Jackson exited the building

through the convenience store’s front door, and police

arrested him as he was getting into his car. Upon frisking him,

they did not find a weapon.

Based on what had been observed and on the earlier arrests,

the police concluded they had probable cause to believe that

drugs were being distributed from the building. They decided

to obtain a search warrant and, in the interim, to enter and

secure the building to prevent the destruction of evidence.

While Detective Jamison was obtaining the search warrant, a

team of officers entered the building’s side entrance and fol-

lowed standard police procedures to secure the building.

Under those procedures, the officers were to "check every

location a human being could be to make sure that we’re all

safe, and we don’t have armed suspects in the house," and

they were to bring any individuals who they found on the

premises to "a central location where they could be watched

for everyone’s safety" until the warrant had been obtained and

the investigation completed. Accordingly, as the officers

entered the building, some went to the second floor to conduct

the protective sweep and others to the convenience store on

the first floor. There, Officer Reginald Parker and Officer

Corey Jennings encountered Keta Steele, the building’s

28 UNITED STATES v. WATSON

owner, and Prentiss Watson, who were working behind the

counter. Officer Parker told Watson to sit down, and he

advised both Steele and Watson of their Miranda rights,

which they both said they understood. He also advised them

that the police were seeking a warrant to search the building

and that "we’re going to detain you until the warrant is actu-

ally prepared."

In the meantime, Detective Jamison prepared the affidavit

and the warrant application and took it to a judge in down-

town Baltimore, where the judge signed the warrant at 3:34

p.m. Jamison then returned to 2700 Tivoly Avenue with the

warrant, arriving there at 3:45 p.m. At that point, Officer Par-

ker again read Steele and Watson their Miranda rights, and

Detective Jamison went upstairs to assist in the search. In the

back bedroom, officers recovered a shotgun and heroin, as

well as a piece of mail with Watson’s name on it. In the front

bedroom, the officers recovered marijuana, a revolver, several

kinds of ammunition, and mail with Watson’s name on it.

When Detective Jamison confronted Watson about the fact

that his mail had been found in the back room where there

was also a shotgun, Watson stated that he "just store[d] some

stuff back there" and that he did not "know anything about a

shotgun." Jamison also asked Watson where Jackson stayed,

and Watson replied, "in the middle room." And when Jamison

asked Watson where he stayed, Watson stated, "the front

room." When Jamison later showed Watson the revolver and

the ammunition taken from the room Watson had identified as

his, Watson stated, referring to the revolver, "that old thing

[doesn’t] even work."

Watson was indicted in two counts, one for being a felon

in possession of a firearm and one for being a felon in posses-

sion of ammunition, both in violation of 18 U.S.C.

§ 922(g)(1).

Watson filed a motion to suppress the statements that he

made to the police while being detained. He argued that the

UNITED STATES v. WATSON 29

police violated his Fourth Amendment rights when they

detained him without probable cause during the period when

they were obtaining the search warrant and searching the

building and that his statements made during the course of the

search were the product of his illegal detention. The district

court denied Watson’s motion, concluding that "the tempo-

rary seizure . . . was clearly supported by probable cause as

to this building, and was designed to prevent the loss of evi-

dence while the police diligently obtained a warrant in a rea-

sonable period of time." The court concluded that the

detention lasted approximately three hours, finding that "[t]he

warrant was approved as quickly as possible in light of the

caseload that the state judges in Baltimore need to deal with"

and referring to the "crisis in the criminal justice system in the

courts of Baltimore City." As an additional and alternative

finding, the court concluded that Watson’s statements were in

any event made voluntarily and not as a result of the allegedly

illegal detention.

After a four-day trial, the jury convicted Watson on both

counts, and the district court sentenced him to 31 months’

imprisonment on each count, to run concurrently.

On appeal, Watson challenges only the district court’s

denial of his motion to suppress.

II

Watson contends that his three-hour detention was a seizure

implicating the Fourth Amendment and that it was illegal

because when officers detained him, they did not have proba-

ble cause to believe that he had committed a crime. He argues

that therefore the statements he made during his detention

were "the fruit of an illegal arrest" and should be suppressed.

The majority accepts Watson’s argument, focusing on the

absence of probable cause as to Watson. The majority opinion

states, "During the entire course of that three-hour detention,

30 UNITED STATES v. WATSON

the police had no reason to believe that the detained individ-

ual was linked to any criminal activity, including the evidence

sought in the search warrant application." Ante, at 8. The

majority then proceeds to adopt a new rule, holding that with-

out probable cause, Watson could only be detained during the

period of the initial protective sweep of the building and

thereafter had to be released. As the majority explains, "At

some point during Watson’s detention, likely close to its

inception, any potential threat that Watson posed to the offi-

cers’ safety had dissipated. Thus, at that point, any reasonable

justification for continuing to detain Watson dissipated as

well." Ante, at 14 (emphasis added).

Unfortunately, this view—that without probable cause,

Watson’s detention was not justified after the protective

sweep was successfully accomplished—overlooks the reason-

able suspicion that existed as to Watson. A reasonable suspi-

cion undoubtedly arises with respect to persons found in a

building that is openly being used for drug distribution or as

a drug stash house, and police officers cannot allay that suspi-

cion by merely conducting a protective sweep. Thus, under

the facts before us, the officers could have reasonably sus-

pected at the time the detention commenced that Steele and

Watson were using their position from behind the retail

counter to assist in the distribution of the heroin that officers

had taken from the previously arrested customers. Under the

jurisprudence of Terry v. Ohio, 392 U.S. 1 (1968), the officers

having this suspicion had a right to detain Steele and Watson,

for a reasonable period, pending issuance of a search warrant

and a search to confirm or allay their suspicion.

The majority’s position also overlooks numerous and sub-

stantial law enforcement interests that the police officers had

in detaining Steele and Watson even after conducting a pro-

tective sweep. First, released occupants could destroy evi-

dence at other locations linked, through a possible drug

trafficking conspiracy, to evidence present in the secured

building. Second, released occupants could arm themselves

UNITED STATES v. WATSON 31

and, with others, return to the building, a risk not minor in a

context where drugs and guns are possibly involved. Third,

releasing occupants would frustrate the officers’ ability to

arrest any occupant who might be inculpated as the result of

the search. And fourth, by releasing occupants before the

search of the building, the officers would be denied the poten-

tially useful cooperation of the detainees when conducting the

search. The Supreme Court has identified all of these interests

as legitimate and important to law enforcement officers when

securing a building as to which probable cause exists. See

Summers, 452 U.S. at 702-03.

All agree in this case that Baltimore City police officers

had probable cause to believe that 2700 Tivoly Avenue was

being used for the distribution of illegal drugs, as numerous

persons were arrested after obtaining heroin from that loca-

tion. The officers actually saw Jackson go in and out of the

building, bringing drugs out for distribution to Smith and,

ultimately, to customers, who were arrested with the heroin.

All also agree that exigent circumstances justified the offi-

cers’ entry into the building to secure the evidence pending

the issuance of a search warrant. See, e.g., Cephas, 254 F.3d

at 495 (noting that the factors justifying a warrantless entry

based on exigent circumstances include "information indicat-

ing the possessors of the contraband are aware that the police

are on their trail," "the ready destructibility of the contra-

band," and "the possibility of danger to police guarding the

site" (internal quotation marks and citation omitted)). Finally,

all agree that after making a lawful warrantless entry, the

police were justified in conducting a "protective sweep" of the

premises. See ante, at 13; cf. Maryland v. Buie, 494 U.S. 325,

337 (1990) (noting that officers may conduct a "limited pro-

tective sweep" in furtherance of officer safety).

The question presented in this case is whether Watson’s

presence in a building, where drug distribution was open and

ongoing, objectively raised a suspicion as to him that was suf-

ficient to detain him while obtaining a warrant and searching

32 UNITED STATES v. WATSON

the building. I suggest that the law on this issue is clear, as are

the routine police practices that implement such law: When

probable cause exists that a building contains contraband and

that ongoing criminal activity is taking place there and when

exigent circumstances justify a warrantless entry, the officers

have a right to secure the building and detain its occupants for

the period reasonably necessary to obtain a warrant and

search the building. See Summers, 452 U.S. at 704-05;

Cephas, 254 F.3d at 491, 494-96; Ruiz-Estrada, 312 F.3d at

400-01, 404; Limares, 269 F.3d at 796-97, 799. The reasons

were set forth in Summers.

In Summers, as police arrived at a house to execute a war-

rant to search for narcotics, they encountered Summers

descending the front steps. The officers detained Summers, as

well as seven other occupants of the house, without having

individualized probable cause, while they searched the prem-

ises. Summers, 452 U.S. at 693 & n.1. The Supreme Court

held that Summers’ seizure during the duration of the search

was consistent with the Fourth Amendment, even though the

Court assumed that his detention was unsupported by proba-

ble cause. Id. at 696, 705.

The Court began its analysis by describing two categories

of seizures approved by its precedents. First, it noted that

there was "the general rule that every arrest, and every seizure

having the essential attributes of a formal arrest, is unreason-

able unless it is supported by probable cause." Id. at 700. At

the same time, the Court also acknowledged the line of cases

beginning with Terry, in which it had "recognize[d] that some

seizures admittedly covered by the Fourth Amendment consti-

tute such limited intrusions on the personal security of those

detained and are justified by such substantial law enforcement

interests that they may be made on less than probable cause,

so long as police have an articulable basis for suspecting

criminal activity." Summers, 452 U.S. at 699 (emphasis

added). With respect to this second category of seizures, the

Court stressed that "the exception for limited intrusions that

UNITED STATES v. WATSON 33

may be justified by special law enforcement interests is not

confined to the momentary, on-the-street detention accompa-

nied by a frisk for weapons involved in Terry and Adams [v.

Williams, 407 U.S. 143 (1972)]," explaining that "[i]f the pur-

pose underlying a Terry stop—investigating possible criminal

activity—is to be served, the police must under certain cir-

cumstances be able to detain the individual for longer than the

brief time period involved in Terry and Adams." Summers,

452 U.S. at 700 & n.12; see also id. at 700 n.12 (noting that

police may utilize "‘several investigative techniques . . . in the

course of a Terry-type stop,’" including detaining a suspect

"‘while it is determined if in fact an offense has occurred in

the area, a process which might involve checking certain

premises’" (quoting 3 W. LaFave, Search and Seizure § 9.2,

pp. 36-37 (1978))).

To determine whether Summers’ seizure was "controlled

by the general rule" requiring probable cause or whether it

could be justified as a Terry-type stop that satisfied the Fourth

Amendment’s reasonableness standard absent probable cause,

the Court examined "both the character of the official intru-

sion and its justification." Summers, 452 U.S. at 701. Assess-

ing the nature of Summers’ seizure, the Court concluded that

his detention "was substantially less intrusive than [a formal]

arrest." Id. at 702 (internal quotation marks and citation omit-

ted). In this regard, the Court noted that the "police had

obtained a warrant to search [Summers’] house for contra-

band," observing that the detention, "although admittedly a

significant restraint," was an "incremental intrusion on per-

sonal liberty" that was "surely less intrusive than the search

itself." Id. at 701, 703. The Court also emphasized that the

detention was unlikely to be "unduly prolonged in order to

gain more information, because the information the officers

seek normally will be obtained through the search and not

through the detention" and that Summers’ detention in his

own residence during the course of the search "could add only

minimally to the public stigma associated with the search

itself and would involve neither the inconvenience nor the

34 UNITED STATES v. WATSON

indignity associated with a compelled visit to the police sta-

tion." Id. at 701-02.

Against the incremental intrusion associated with the deten-

tion, the Court posited three legitimate law enforcement inter-

ests advanced by detaining those present while a lawful

search is conducted. First, there is an "obvious . . . legitimate

law enforcement interest in preventing flight in the event that

incriminating evidence is found." Summers, 452 U.S. at 702.

Second, "the orderly completion of the search may be facili-

tated if the occupants of the premises are present" because

"self-interest may induce them to open locked doors or locked

containers to avoid the use of force that is not only damaging

to property but may also delay the completion of the task at

hand." Id. at 703. And third, the detention of occupants serves

to "minimize[e] the risk of harm to the officers." Id. at 702.

In this regard, the Court recognized that even though "no spe-

cial danger to the police [was] suggested by the evidence in

this record, the execution of a warrant to search for narcotics

is the kind of transaction that may give rise to sudden vio-

lence or frantic efforts to conceal or destroy evidence,"

emphasizing that "[t]he risk of harm to both the police and the

occupants is minimized if the officers routinely exercise

unquestioned command of the situation." Id. at 702-03.

Finally, the Court also considered "the nature of the articul-

able and individualized suspicion" to justify the seizure, con-

cluding that "[t]he existence of a search warrant . . . provides

an objective justification for the detention" because "[t]he

connection of an occupant" to a building that a judicial officer

has approved searching for contraband "gives the police offi-

cer an easily identifiable and certain basis for determining that

suspicion of criminal activity justifies a detention of that

occupant." Summers, 452 U.S. at 703-04.* Although recog-

*The majority apparently rejects this proposition in Summers, denying

that a person’s presence in a building as to which probable cause of crimi-

nal activity exists "gives the police officer an easily identifiable and cer-

tain basis" for suspicion. See ante, at 15.

UNITED STATES v. WATSON 35

nizing that a "prolonged detention[ ] might lead to a different

conclusion in an unusual case," the Court nonetheless held

that "a warrant to search for contraband founded on probable

cause implicitly carries with it the limited authority to detain

the occupants of the premises while a proper search is con-

ducted." Id. at 705 & n.21 (emphasis added). Moreover, the

Court did not limit this principle to a circumstance where the

warrant had actually issued, but recognized that probable

cause and exigent circumstances could likewise justify the

detention of occupants. See id. at 700 n.17 (noting that "the

fact that our holding today deals with a case in which police

had a warrant does not, of course, preclude the possibility that

comparable police conduct may be justified by exigent cir-

cumstances in the absence of a warrant") (emphasis added).

The Court also clarified that the justification for detaining

occupants of premises as to which probable cause exists was

categorical, noting that "if police are to have workable rules,

the balancing of the competing interests inherent in the Terry

principle must in large part be done on a categorical basis—

not in an ad hoc, case-by-case fashion by individual police

officers" and observing that "[t]he rule we adopt today does

not depend upon such an ad hoc determination, because the

officer is not required to evaluate either the quantum of proof

justifying detention or the extent of the intrusion to be

imposed by the seizure." Id. at 705 n.19 (internal quotation

marks and citations omitted); see also Muehler v. Mena, 544

U.S. 93, 98 (2005) (applying Summers to hold that an individ-

ual’s detention for up to three hours while police conducted

a search was reasonable because she was an occupant of an

address for which a search warrant had been issued at the time

of the search); United States v. Photogrammetric Data Servs.,

Inc., 259 F.3d 229, 239 (4th Cir. 2001) (relying on Summers

to hold that because police were in possession of a valid war-

rant to search the premises of a business, officers "necessarily

had authority to secure the premises and detain the employees

temporarily in order to conduct the search with minimal inter-

36 UNITED STATES v. WATSON

ference"), abrogated on other grounds by Crawford v. Wash-

ington, 541 U.S. 36 (2004).

Summers clearly guides our analysis here and directly sup-

ports the reasonableness of the police officers’ actions in this

case. To be sure, the police in Summers had already obtained

a search warrant when they appeared at Summers’ house. But

the Court also noted that "comparable police conduct may be

justified by exigent circumstances in the absence of a war-

rant." Summers, 452 U.S. at 702 n.17. More importantly, the

principles enunciated in Summers, while depending on proba-

ble cause as to criminal activity in the house, did not, in the

end, hinge on the issuance of the warrant itself. Rather, the

culpability of the premises, the nature of the intrusion, and the

law enforcement interests implicated by the situation justified

the detention.

Thus, under Summers’ reasoning, the temporary detention

of those occupying premises that police have lawfully secured

while awaiting a search warrant, although amounting to a sei-

zure within the Fourth Amendment, is substantially less intru-

sive than a traditional, formal arrest that may only be justified

by probable cause. See Summers, 452 U.S. at 701-02. Given

that the police had probable cause to believe that criminal

activity was ongoing at 2700 Tivoly Avenue and that entry

without a warrant was justified by exigent circumstances,

detaining Watson and Steele at the scene in the interim was

not an overbearing intrusion on their personal liberty. Indeed,

many law-abiding citizens in Watson and Steele’s position

would likely want to stay on the premises for a reasonable

period of time to observe the officers stationed in their home

and place of business. See id. at 701. As such, the seizure at

issue here was perhaps no more intrusive than the majority’s

suggested alternative of removing Watson and Steele from the

building and prohibiting their reentry. See ante, at 11.

Moreover, the additional intrusion caused by a temporary

detention in these circumstances is justified by the same legit-

UNITED STATES v. WATSON 37

imate law enforcement interests implicated in Summers. Just

like in Summers, the police here had a legitimate "interest in

preventing flight [of the building’s occupants] in the event

that incriminating evidence [was] found" and in ensuring that

those present remain to facilitate "the orderly completion of

the search" once it was authorized. Id. at 702-03. And just like

in Summers, the police had a substantial interest in minimiz-

ing the harm to officers that was inherent in securing a build-

ing prior to a search for drugs and guns. See id. To allow

those present when police secure a building to subsequently

depart while the officers wait for the warrant would substan-

tially increase the risk of harm to the police left guarding the

site. Indeed, from an officer-safety perspective, police would

find themselves in a much worse position than they faced

before they had effected a lawful warrantless entry to secure

the building, becoming vulnerable to attack by those armed

with knowledge regarding the number of officers on the scene

and fortified by their desperation to keep the police from

uncovering the contraband that officers have probable cause

to believe is present.

And finally, the temporary detention of Watson and Steele

was justified by the same type of "articulable and individual-

ized suspicion" that supported the detention in Summers. Id.

at 703. The "connection of an occupant" to a building that the

police have lawfully secured pending the issuance of a search

warrant "gives the police officer an easily identifiable and cer-

tain basis for determining that suspicion of criminal activity

justifies a detention of that occupant." Summers, 452 U.S. at

703-04. The majority misses this point, repeatedly asserting—

presumably based on the officers’ testimony that they did not

have any specific information relating to Watson when they

entered the building—that the police did not suspect Watson

of any criminal activity. But under the logic of Summers, the

fact that Watson was an occupant of a building that police had

probable cause to believe harbored heroin and served as a

facility from which heroin was being openly distributed pro-

38 UNITED STATES v. WATSON

vided the police with reason to suspect Watson of participat-

ing in the ongoing criminal activity.

In sum, balancing the nature of the intrusion in this case

against both the legitimate law enforcement interests and the

articulable suspicion supporting the detention, the Baltimore

City police acted reasonably when they temporarily detained

the individuals occupying a place that officers had lawfully

entered and secured.

Of course, this type of detention should not last "longer

than reasonably necessary for the police, acting with dili-

gence, to obtain the warrant." Illinois v. McArthur, 531 U.S.

326, 332 (2001). But in the circumstances of this case, involv-

ing the preparation and obtaining of a warrant from a judge

otherwise carrying a heavy criminal docket in a busy city

courthouse, a three-hour detention was not unreasonable. See

Mena, 544 U.S. at 98 (approving a detention of three hours

while police conducted a search).

Contrary to these governing principles, the majority estab-

lishes a new rule that police officers, finding occupants in a

building as to which probable cause exists that contraband is

being harbored and crime is being committed therein, must

nonetheless release the occupants after completing the protec-

tive sweep. See ante at 14. In doing so, the majority com-

pletely overlooks: (1) the suspicion created by the very

presence of the detained occupants in a building from which

drugs were being distributed, (2) the risks the rule would

cause to law enforcement officers, and (3) the legitimate ben-

efits it would deny them. Because I conclude that Watson’s

detention was reasonable, I would affirm.