The Second Circuit in the Supreme Court
With the Supreme Court beginning its 2013 term next week, we conduct our 29th annual review of the performance of the U.S. Court of Appeals for the Second Circuit over the past term, and briefly discuss the Second Circuit decisions scheduled for review during the upcoming term.
During its 2012 term, the Supreme Court handed down merits opinions reviewing decisions by the U.S. Courts of Appeals in 67 cases, including one summary reversal. The performance of the circuit courts is described in the chart accompanying this article, with the Supreme Court affirming (in whole or in part) 19 decisions (or 28 percent), and reversing 48 (or 72 percent) of these 67 cases.
The Supreme Court decided 10 cases from the Second Circuit last term (up from just two during the 2011 term). The court affirmed the Second Circuit in four cases, and reversed or vacated it in six cases. We discuss in this article1 five of the 10 Second Circuit decisions reviewed by the Supreme Court.2 We also briefly describe the cases that have been granted certiorari for the 2013 term.
In Bailey v. United States, the court considered whether the authority to detain individuals pursuant to the execution of a search warrant—recognized in Michigan v. Summers—permits the detention of individuals away from the premises searched.3 The Second Circuit's decision extended Summers to approve detention outside the location covered by the warrant, so long as the individual detained was observed leaving the premises and detained "as soon as reasonably practicable."4 In a 6-3 decision, the Supreme Court reversed, holding that the Fourth Amendment permits such detentions only within the "immediate vicinity" of the premises searched.
The police obtained a warrant to search Chunon Bailey's residence for a handgun. Prior to the search, officers in an unmarked car conducting surveillance outside the residence noticed two men entering a car parked in the driveway and driving away. The officers followed the car, pulled the car over about a mile away, and detained and searched Bailey and his passenger. The officers found a ring of keys and elicited statements that tied Bailey to the residence, which contained drugs and guns.
The district court denied Bailey's motion to suppress, finding the search and seizure lawful both under Summers and also as an investigatory detention supported by reasonable suspicion under Terry v. Ohio.5 The jury convicted Bailey of drug and weapons offenses. The Second Circuit affirmed the convictions, holding that the police conduct was lawful under Summers. The Second Circuit did not reach the district court's alternate holding.
Summers is an exception to the ordinary rule that the Fourth Amendment prohibits detention in the absence of probable cause to arrest an individual for a crime. Under Summers, when the police execute a search warrant, they are permitted "to detain the occupants of the premises while a proper search is conducted." Summers does not require an individualized determination of probable cause or reasonable suspicion; rather, the authority is "categorical."6 The rationale of Summers is that such detentions are justified by three law enforcement interests: officer safety, facilitating the completion of the search, and preventing flight.
The majority opinion, authored by Justice Anthony Kennedy, concluded that these three law enforcement interests did not justify the Second Circuit's extension of the Summers doctrine to individuals away from the premises. Officer safety could be adequately protected by detaining such an individual when and if he returns to the premises. Nor do far away individuals pose a significant threat to the orderly completion of a search.
As for the interest in preventing "flight," the court concluded that Summers' concern was not with "flight itself," but only with the "damage that potential flight can cause to the integrity of the search."7 In short, the court reasoned that none of the three justifications identified in Summers applied with the "same or similar force" in the case of persons away from the scene, particularly in light of the "additional level of intrusiveness" involved.8 The Supreme Court reversed and remanded to the Second Circuit to consider whether the detention was lawful under Terry.
Justice Stephen Breyer, joined by Justices Clarence Thomas and Samuel Alito, dissented. The dissent argued that all three law enforcement interests identified in Summers were "as likely or more likely to support detention" of an individual observed leaving the premises and detained as soon as reasonably practicable. While agreeing with the majority that a bright line rule was necessary, the dissent criticized the majority for relying on "indeterminate geography" rather than "realistic considerations."9
Article III Standing
In Clapper v. Amnesty International USA, the court held that various plaintiffs lacked Article III standing to seek declaratory and injunctive relief against future surveillance authorized by Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §1881a, which allows the targeting of communications by non-U.S. persons outside the country to gather foreign intelligence information.10 In a 5-4 decision by Alito, the court held that plaintiffs' theory of future injury was too speculative to satisfy Article III's requirements that such injury be "certainly impending" and "fairly traceable." The court also rejected plaintiffs' alternative theory of present injury based upon the burdensome precautions the plaintiffs took to avoid surveillance.
Under traditional FISA, the Foreign Intelligence Surveillance Court (FISC) is authorized to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that the target is a foreign power or an agent of a foreign power and that the target uses or is about to use the facilities or places at which the surveillance is directed.11 Section 1881a, enacted as part of the FISA Amendments Act of 2008, granted the executive a new and independent source of intelligence collection authority. Unlike traditional FISA surveillance, §1881a: (i) does not require that the target be a foreign power or an agent of a foreign power, (ii) does not require the government to specify the target or the places at which the electronic surveillance will occur to the FISC, and (iii) limits the FISC's authority to insist upon minimization procedures.12