Denying Cell Phone Access During a "Summers-Type" Detention

This post is only offered as a discussion topic only and does not represent legal advice. Officers must refer to the laws in their own State as well as their agency's policies, which can be more restrictive on officers that the law requires.

Scenario:  While serving a search warrant at a business, a police officer detains everyone who was on-site and refuses to allow them to use their cellular phones.

When detaining people at the location of a search warrant service, can officers deny use of a cell phone while the search is being conducted?

Answer: This was recently discussed in an unpublished case from the Ninth Circuit called, Chavez v. Wynar from 2023. Remember that officers can't rely on unpublished cases as authority for their actions but they do teach us about the courts' opinions on certain matters based on the history of similar incidents.

So in this case, they explained that when officers detain the occupants of a location where they've obtained a search warrant for, those detentions are referred to as "Summers-Type" detentions. The authority of officers to detain the occupants comes from a United States Supreme Court Case called Michigan v. Summers from 1981. In that case, the Supreme Court said, "For Fourth Amendment purposes, we hold 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 conducted."

Going back to the unpublished case from 2023, they went on to discuss the issue of preventing the use of a phone during a Summers-type detention. They explained that in 2003, in a case called Ganwich v. Knapp, the 9th Circuit held that denying occupants use of the phone was constitutionally unreasonable. But, during that incident, the officers withheld use of the phone for time periods as long as almost five hours and made the release of the occupants conditional on submitting to interrogation.

The court said, "Ganwich...did not place the constitutional question presented here (referring to denying use of the cell phone) beyond debate." Therefore, an officer should make sure that if they are preventing use of a phone at the beginning of a Summers-type detention, they don't unreasonably extend the time-period for the cell phone denial and definitely don't condition the occupants release on their willingness to speak to the police.