Michigan v. Summers

Justice Stewart, writing an opinion joined by Justices Brennan and Marshall, dissented from the Court's decision and concluded that the decision was an unwarranted extension of the Terry rule. Justice Stewart noted that the Court allowed a detention based on less than probable cause in only two situations: where the officers had reason to believe that the person detained was carrying a weapon and thus posed a threat to the safety of the officers; and brief stops of vehicles near international borders to question the occupants about their citizenship. Justice Stewart reasoned that "[t]he common denominator of [these] cases is the presence of some governmental interest independent of the ordinary interest in investigating crime and apprehending suspects." Justice Stewart found that the interests supporting the officers' detention of Summers--preventing flight from the scene and the orderly conduct of the search--represent "nothing more than the ordinary police interest in discovering evidence of crime and apprehending wrongdoers."

Justice Stewart also disagreed with the majority's conclusion that the detention of a person while his home is searched is only a limited type of detention. He reasoned that a search of a home can take several hours, which is much longer than the brief one or two minute detentions involved in Terry-type "stop and frisk" cases and the border patrol cases. He also noted that the police could prolong the detention, because "[i]f the purpose of the detention is to help the police make the search, the detention can be as long as the police find it necessary to protract the search." Finally, Justice Stewart disagreed with the majority's conclusion that most citizens will choose to remain in their homes during the search, noting that Summers apparently did not want to do so. Thus, Justice Stewart concluded that the majority's decision was an extension of Terry which was not justified by the reasons underlying that rule or subsequent cases applying the rule.