                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 19-2055
                         ___________________________

                              United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                                   Maurice Freeman

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                            Submitted: February 13, 2020
                               Filed: July 10, 2020
                                  ____________

Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
                              ____________

SMITH, Chief Judge.

       Maurice Freeman appeals his conviction on an illegal weapons charge. Freeman
argues that the police violated his Fourth Amendment rights by detaining him while
executing a warrant on a residence he was parked near. Given the circumstances of the
detention, we disagree and affirm the district court.1

      1
        The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
                                   I. Background
      Police searched for the two perpetrators of a bank robbery and shooting. They
identified one suspect as Derrick Ashley, Jr., but the identity of the other remained
unknown. Investigation led law enforcement to a house in St. Joseph, Missouri. To
acquire information for a warrant application, a detective watched the St. Joseph house
to see if Ashley was inside. As he drove past the residence, the detective observed a tan
car parked directly in front of the residence and a silver Pontiac with two occupants
parked behind the tan car. The detective parked a short distance away.

       Eventually, the detective saw Ashley walk out of the house and speak with the
Pontiac’s passengers. The Pontiac drove away soon thereafter but returned less than
an hour later. It parked behind a Cadillac, which had parked behind the tan car while
the Pontiac was away. Ashley again exited the residence and walked to the Pontiac. He
took a bag of dog food from the car and returned inside. Law enforcement used the
information the surveilling detective gathered to obtain a search warrant for the house
Ashley occupied.

       Special response team officers then arrived in an armored car and parked in
front of the house. The surveilling detective and multiple officers walked up the street
to help secure the cars’ occupants. As they approached the Pontiac, which had an open
sunroof, the officers smelled marijuana.2 One officer looked into the Pontiac and saw
the driver lean forward. The driver was later identified as Maurice Freeman. Believing
Freeman was attempting to conceal something in or retrieve something from the
floorboard, the officer ordered the car’s occupants to turn the engine off and raise their
hands.



      2
        The smell of marijuana was so pungent that an officer who smelled the Pontiac
at the impound garage called one of the investigating officers and asked if a large
amount of marijuana had been seized from the car.
                                           -2-
       Freeman and the other passenger were removed from the car, handcuffed, and
taken to the armored vehicle. Based on the smell of marijuana, officers searched the
car. That search revealed a handgun and a pill bottle that appeared to contain
marijuana; Freeman admitted the gun was his. Freeman was arrested, and police later
found methamphetamine on his person.

      A grand jury indicted Freeman with felony possession of a firearm. See 18
U.S.C. §§ 922(g)(1), 924(a)(2). Freeman moved to suppress all of the evidence
discovered in the Pontiac. He argued that the warrant did not cover his car and that the
police lacked reasonable suspicion to stop him.

      A magistrate judge recommended that the district court deny the motion. The
magistrate judge found a sufficient nexus between the car’s occupants and Ashley—a
dangerous suspect—to justify the officers’ decision to secure the car’s occupants and
ensure officer safety during the warrant’s execution. The magistrate judge found the
officers developed probable cause to search the car and arrest its passengers based on
the emanation of the strong smell of marijuana. The district court adopted the
magistrate’s findings and denied Freeman’s motion. Freeman conditionally pleaded
guilty and was sentenced to 37 months’ imprisonment.

                                II. Discussion
      On appeal, Freeman challenges the district court’s denial of his suppression
motion. We review the court’s “legal conclusions de novo and factual findings for clear
error.” United States v. Morris, 915 F.3d 552, 555 (8th Cir. 2019) (internal quotation
omitted).

      The Supreme Court has recognized “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.” Michigan v. Summers,
452 U.S. 692, 705 (1981) (footnotes omitted). When determining whether a detention

                                          -3-
is permissible, the Court has considered “[1] the character of the official intrusion and
[2] its justification.” Id. at 701. When weighing the character of the intrusion, the
Court has examined the intrusiveness of the detention and the stigma the detention
carried. See id. at 701–02; see also Bailey v. United States, 568 U.S. 186, 200 (2013).
The Court has identified three justifications that support a detention: “officer safety,
facilitating the completion of the search, and preventing flight.” Bailey, 568 U.S. at
194; see also Summers, 452 U.S. at 702–04.

       Applying the Supreme Court’s analysis in Summers and Bailey, we conclude
Freeman’s brief detention3 was permissible. In Summers, police had a search warrant
for the defendant’s home and detained the defendant, who was stopped walking down
the steps of the house during the warrant’s execution. 452 U.S. at 693–94. The Court
upheld that detention. Id. at 705. Considering the character of the intrusion, the Court
found that the detention “was surely less intrusive than the search [of the home] itself.”
Id. at 701. In addition, the occupant’s detention was not likely to be exploited to gain
incriminating information because the police already had a valid warrant to accomplish
that goal. Id. Further, the detention did not significantly add to the public stigma caused
by the search itself. Id. at 702.

       The Court also found that the police had valid justifications for the detention.
First and “[m]ost obvious [wa]s the legitimate law enforcement interest in preventing
flight in the event that incriminating evidence [wa]s found.” Id. Second and
“sometimes of greater importance, [wa]s the interest in minimizing the risk of harm to


       3
        Freeman was eventually removed from his car, handcuffed, and placed in the
armored vehicle. However, those facts are not relevant to our inquiry because they
arose once the police smelled the marijuana and saw Freeman’s furtive hand
movements. In other words, those facts arose after the police had independent probable
cause. See United States v. Beard, 708 F.3d 1062, 1065 (8th Cir. 2013). Because of
that, they are not relevant in weighing the allegedly improper aspects of Freeman’s
detention: the officers’ decision to block the Pontiac in and approach the vehicle.
                                            -4-
the officers.” Id. And third, the Court found that officers have an interest in “the
orderly completion of the search,” which “may be facilitated if the occupants of the
premises are present.” Id. at 703.

       In Bailey, the Court addressed “whether Michigan v. Summers justifies the
detention of occupants beyond the immediate vicinity of the premises covered by a
search warrant.” 568 U.S. at 192. There, officers watched two individuals drive away
from an apartment that was the subject of a search warrant. Id. at 190. While some
officers began the search, others followed and stopped the occupants about a mile from
the apartment. Id. They then handcuffed the occupants and brought them back to the
home. Id. at 191.

         The Court observed that its cases so far had only considered “occupants
detained . . . within or immediately outside a residence at the moment the police
officers executed the search warrant.” Id. at 193. In determining Summers’s scope, the
Court noted that “[a]n exception to the Fourth Amendment rule prohibiting detention
absent probable cause must not diverge from its purpose and rationale.” Id. at 194.
Therefore, it considered “the reasons for the rule explained in Summers to determine
if its rationale extend[ed] to a detention like the one” before it. Id.

        The Court analyzed the three justifications for a detention recognized in
Summers, and it stated that the occupants “posed little risk to the officers at the scene,”
id. at 196, because they “left the premises . . . without knowledge of the search.” Id.
at 195–96. Further, the officers could have mitigated any risk posed by their return “by
taking routine precautions, for instance by erecting barricades or posting someone on
the perimeter.” Id. at 195. As for the orderly execution of the warrant, the Court
concluded that a departed occupant does not pose a risk of “hid[ing] or destroy[ing]
evidence, seek[ing] to distract the officers, or simply get[ting] in the way.” Id. at 197.
Lastly, the Court considered the officers’ interest in preventing flight, which “serves
to preserve the integrity of the search by controlling those persons who are on the

                                            -5-
scene.” Id. at 198. It reasoned that “[t]he concern over flight is not because of the
danger of flight itself but because of the damage that potential flight can cause to the
integrity of the search.” Id. at 199. That “does not independently justify detention of
an occupant beyond the immediate vicinity of the premises to be searched.” Id.

       As for the character of the intrusion, the Court decided that a detention away
from one’s home is a significant intrusion on personal liberty because of the stigma it
carries. Id. at 199–200. “A public detention, even if merely incident to a search, will
resemble a full-fledged arrest.” Id. at 200. Further, “detention beyond the immediate
vicinity can involve an initial detention away from the scene and a second detention
at the residence. In between, the individual will suffer the additional indignity of a
compelled transfer back to the premises, giving all the appearances of an arrest.” Id.

      In light of those factors, the Court placed “[a] spatial constraint” on Summers,
limiting it to “the immediate vicinity of the premises to be searched.” Id. at 201.
Because the petitioner was almost a mile from his home at the time of his detention,
the Court determined that Summers did not apply. Id. at 201–02; see also United States
v. Sherrill, 27 F.3d 344, 346 (8th Cir. 1994) (finding that Summers did not justify a
stop made down the street from a house because “the officers had no interest in
preventing flight or minimizing the search’s risk because [the defendant] had left the
area of the search and was unaware of the warrant”).

       Freeman argues that the justifications articulated in Summers and Bailey do not
support the detention here. We disagree. As to officer safety, the Court in Summers
recognized that “[a]lthough no special danger to the police is 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 violence or frantic efforts to conceal or destroy
evidence.” Summers, 452 U.S. at 702. The same could be said of the search warrant
here. The officers were seeking Ashley, the suspect of a gun shooting and bank
robbery. The execution of a warrant for such an individual qualifies as one that “may

                                           -6-
give rise to sudden violence or frantic efforts to conceal . . . evidence” or escape. Id.
Further, Ashley’s accomplice was still at large, and the police observed Ashley twice
interacting with the Pontiac’s passengers. Officers testified that the Pontiac and its
passengers were either three car lengths from the home or between the house and
residence to the north. That placed the passengers “within the line of sight of [the]
dwelling.” Bailey, 568 U.S. at 201. If armed, those passengers “pose[d] a real threat
to the safe and efficient execution of [the] search warrant.” Id. Given that threat; the
Pontiac’s passengers’ “connection to the residence to be searched,” id. at 197; and the
dangerous suspect therein, a concern for officer safety justified the brief detention
which occurred here.

       Next, the Court has observed that officers’ interest in “the orderly completion
of the search . . . . derives from distinct . . . concerns.” Id. (internal quotation omitted).
“If occupants are permitted to wander around the premises, there is the potential for
interference with the execution of the search warrant. They can hide or destroy
evidence, seek to distract the officers, or simply get in the way.” Id. Though not within
the house, the same can be said of the Pontiac’s passengers here. They were present
at the scene and could have exited their vehicle to interfere with the search for and
arrest of Ashley. Therefore, the interest in an orderly execution of the search warrant
also provided some justification for the detention of the vehicle’s occupants.

       As for the interest in preventing flight, the officers’ main focus was certainly
preventing Ashley’s escape from the premises, not the passengers in the car. Still, the
Court has provided that the interest in preventing flight, much like the orderly
completion of the search interest, “serves to preserve the integrity of the search by
controlling those persons who are on the scene.” Id. at 198. On these facts, this factor
does not favor the detention. But it, by itself, does not outweigh the first two interests
here.




                                             -7-
         Freeman argues that, even if there were valid justifications for the search, the
character of the detention takes it outside of the scope of Summers. See 452 U.S. at
703–04. Admittedly, unlike the occupant in Summers, Freeman had neither the
protections that a search warrant provides nor did he face the liberty infringement one
creates. See id.; see also Bailey, 568 U.S. at 200 (“Because the detention occurs in the
individual’s own home, it could add only minimally to the public stigma associated
with the search itself and would involve neither the inconvenience nor the indignity
associated with a compelled visit to the police station.” (internal quotation omitted)).
Still, the Court’s Bailey analysis does not turn on the presence of a warrant. Rather, in
analyzing the intrusion on liberty, the Court has focused on the facts surrounding the
detention and the “stigma associated with the search.” See Bailey, 568 U.S. at 200
(internal quotation omitted); Summers, 452 U.S. at 703–05.

       Considering the instant facts, the intrusion on Freeman’s liberty and the
associated stigma are dissimilar to those that rendered detentions invalid. In those
cases, individuals were driving away from the home and were already well beyond its
premises before police officers stopped them and brought them back to the house. See
Bailey, 568 U.S. at 200; Sherrill, 27 F.3d at 345–46. Freeman, in contrast, was sitting
in his car parked near the premises to be searched when the stop occurred; he
continued sitting in the car after he was blocked in. In other words, the initial detention
that Freeman challenges did not alter his course of conduct. True, he no longer had a
choice to immediately leave the scene, which is certainly an impingement of his liberty.
But these facts differ materially from chasing an individual down, handcuffing him
publicly, placing him in a marked patrol car, and carrying him almost a mile to the
home being searched. See Bailey, 568 U.S. at 190–91.

       For similar reasons, Freeman did not suffer a significant public stigma. The
officers tasked with securing the occupants of the car walked up the street. Prior to
detecting the marijuana smell emanating from the car and seeing Freeman’s furtive
movements, officers had their guns low and ready—not trained on the car or its

                                            -8-
occupants. Given this context, an onlooker would not necessarily think that the
Pontiac’s occupants were the targets of the police activity. Again, that is not equivalent
to the stigma associated with stopping an individual in public, handcuffing him, and
driving him back to his home. Bailey, 568 U.S. at 200; Sherrill, 27 F.3d at 345–46.
Considering the Court’s justifications in Summers and Bailey, we hold the officers’
brief detention of the occupants of Freeman’s vehicle—who had recent contact with
the suspected felon and remained parked within the immediate vicinity of the premises
to be searched—was permissible.

       Freeman argues that Summers is a categorical rule “appl[ying] only to seizures
of occupants—that is, persons within the immediate vicinity of the premises to be
searched.” Bailey, 568 U.S. at 203 (Scalia, J., concurring) (internal quotations
omitted). He argues that he was neither an occupant of the home nor was he within the
immediate vicinity of the home’s premises.

       First, we note that even if Justice Scalia’s categorical rule bound us,4 Freeman’s
arguments misconstrue it. Freeman appears to argue that the rule requires an individual
to both be (1) an occupant of the home and (2) within the home’s immediate vicinity.
Yet, per Justice Scalia’s language, an occupant is defined by his or her location—i.e.,
an occupant is a “person[] within the immediate vicinity of the premises to be

       4
       Though it may be persuasive, we are not bound by a Supreme Court
concurrence when it accompanies a majority opinion. See United States v. Duvall, 740
F.3d 604, 610 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“Justices who join the
majority may of course express additional thoughts in a concurrence, but concurrences
do not bind lower courts in cases where there is a majority opinion.”); Ainsworth v.
Moffett Eng’g, Ltd., 716 F.3d 174, 178 (5th Cir. 2013) (“The reasoning of a Supreme
Court opinion that does not command a majority vote is not binding precedent.”);
Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 878 (4th Cir. 1999)
(en banc) (“Justice Brennan’s . . . views in dissent, of course, are not binding authority,
any more than are Justice Clark’s . . . in concurrence.”), aff’d sub nom. United States
v. Morrison, 529 U.S. 598 (2000).
                                            -9-
searched.” See Bailey, 568 U.S. at 203 (Scalia, J., concurring) (internal quotation
omitted).

      The Bailey majority provided several factors to determine whether a person is
within the immediate vicinity of the premises to be searched:

      In closer cases courts can consider a number of factors to determine
      whether an occupant was detained within the immediate vicinity of the
      premises to be searched, including the lawful limits of the premises,
      whether the occupant was within the line of sight of his dwelling, the ease
      of reentry from the occupant’s location, and other relevant factors.

Id. at 201. It also expressed that “[l]imiting the rule in Summers to the area in which
an occupant poses a real threat to the safe and efficient execution of a search warrant
ensures that the scope of the detention incident to a search is confined to its underlying
justification.” Id. (emphasis added).

      Freeman was within the line of sight of the dwelling and potentially posed a real
threat to the safe and efficient execution of the search. The Pontiac was either three car
lengths from the home or between Ashley’s house and the house immediately adjacent
to the north, and the officers observed Ashley, a potentially dangerous suspect, interact
with its occupants. Further, even though it was not within the lawful limits of the
premises, the car placed Freeman close enough to allow easy access to the home. Given
these facts, we hold that Freeman was in the immediate vicinity of the home.
Therefore, Freeman was an occupant even under his proffered categorical rule.

       Second, even if the occupant and immediate vicinity questions are separate
requirements, Freeman constituted an occupant under persuasive case law. For
instance, the Sixth Circuit has found that individuals similarly situated to Freeman
constitute occupants. See Burchett v. Kiefer, 310 F.3d 937, 943 (6th Cir. 2002) (“We


                                          -10-
have extended police officers’ powers under Summers in two important respects. First,
. . . this court ruled that the Supreme Court’s discussion of ‘occupants’ in Summers
included nonresidents who are present at the scene of a search when police arrive. . .
. Second, . . . we ruled that officers could also detain individuals who arrive at the
scene of a search, even if they were not inside the residence or present when police first
arrived.”). In addition, applying the Summers rationale to a Terry stop, we have
allowed officers to stop a vehicle on the street in front of a home that was the subject
of a search warrant. See United States v. Martinez-Cortes, 566 F.3d 767, 770–71 (8th
Cir. 2009); see also United States v. Jennings, 544 F.3d 815, 818–19 (7th Cir. 2008)
(finding that Summers supported the stop of an individual who “never stepped onto the
property being searched” because his presence within the security perimeter posed a
threat to officers executing a high-risk search warrant). Applying these cases,
Freeman—a passenger of a car parked on a street in front of a premises subject to a
search warrant who was connected to the premises’s occupant—was also an
“occupant” under Summers.

      In sum, we find that Freeman’s initial detention was permissible under the
Supreme Court’s rationale in Summers. Thus, the officers’ (1) brief detention of the
Pontiac’s passengers and (2) approach of the car were constitutionally permissible.5
During that approach, the officers developed probable cause to search the car when
they smelled marijuana and saw Freeman’s furtive movements. See Beard, 708 F.3d
at 1065. As a result, their brief seizure of Freeman and subsequent search of the
vehicle based on probable cause was constitutional. The district court did not err in
denying Freeman’s motion to suppress.


      5
         The parties disagree about when the initial detention occurred. Freeman argues
that it occurred when the armored vehicle blocked him in, and the government argues
that it occurred when the officers told Freeman to shut off the car and put his hands up.
Assuming without deciding that the officers detained Freeman when they blocked his
car in, we find that the detention was lawful for the reasons discussed above.
                                          -11-
                                  III. Conclusion
      For those reasons, we affirm.

STRAS, Circuit Judge, concurring in the judgment.

       This case is factually indistinguishable from United States v. Jones, 471 F.3d
868 (8th Cir. 2006). Compare id. at 870–71, 875, with ante at 2–3. See United States
v. Martinez-Cortes, 566 F.3d 767, 770–71 (8th Cir. 2009). Rather than trying to
reinvent the wheel, I would simply rely on Jones and say nothing more.6 See Mader
v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).

                        ______________________________




      6
         The court’s unwillingness to rely on Jones is all the more problematic in light
of its confusing discussion of the Michigan v. Summers line of cases. Compare Bailey
v. United States, 568 U.S. 186, 193 (2013) (explaining that the “categorical” rule from
Summers “does not depend on the . . . extent of the intrusion” (quoting Muehler v.
Mena, 544 U.S. 93, 98 (2005)) (emphasis added)); Lykken v. Brady, 622 F.3d 925,
932 (8th Cir. 2010) (agreeing that the Summers rule is “categorical”); United States v.
Jennings, 544 F.3d 815, 818 (7th Cir. 2008) (same), with ante at 9 & n.4 (suggesting
that we are “not bound” to apply Summers as a “categorical rule”).
                                         -12-
