A recent post at SCOTUSblog by Keven Russell discussed ways of getting the Supreme Court interested in your appellate decision if you don't have a circuit split to trumpet. Although it's a very useful post, it didn't mention the easiest approach: make sure you lost in the Ninth Circuit with Judge Reinhardt or Pregerson (or, if you're really lucky, both) in the majority. To wit, today's summary reversal of the Ninth Circuit in Los Angeles County v. Retelle, overturning an unpublished 2-1 memorandum decision of the Ninth Circuit with Pregerson and Thomas in the majority and Senior Judge Robert Cowen of the Third Circuit in dissent.

  Retelle is a pretty interesting case. The government obtained a warrant to search two houses for evidence of fraud and identity theft; the suspects in the case were all black. One of the suspects was known to have a gun. The police executed the warrant at the first house at 7:15 am one morning. they knocked and announced, and a a 17-year old caucasian male opened the door. The cops entered the house and went to the bedroom where they expected to find the suspects named in the warrant. Instead, they found a caucasian couple in bed:

The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.

  It turned out that Retelle and Sadler had just recently bought the house, and that the suspects were no longer living there. The police quickly realized this. "They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted."

  Meanwhile, Retttele and Sadler sued the police under 42 U.S.C. 1983. They did not contest that the warrant was valid. Rather, they argued that their rights were violated when the police had ordered them out of bed naked early in the morning while executing the warrant. The Ninth Circuit agreed, holding that a jury could find that the police had violated the Fourth Amendment in doing so, and that qualified immunity didn't protect them. Here's the Ninth Circuit's analysis:

[B]ecause (1) no African-Americans lived in Plaintiffs' home; (2) Plaintiffs, a Caucasian couple, purchased the residence several months before the search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search; and (4) Plaintiffs were ordered out of bed naked and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and detention were "unnecessarily painful, degrading, or prolonged," and involved "an undue invasion of privacy," Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994). . . .

Based on Plaintiffs' version of the facts, we find that a reasonable officer would have known that such a search and detention was unlawful under the circumstances. After taking one look at Plaintiffs, the deputies should have realized that Plaintiffs were not the subjects of the search warrant and did not pose a threat to the deputies' safety. To order Plaintiffs out of bed at gunpoint, early in the morning and before Plaintiffs had dressed, was "unnecessarily painful" and "degrading," and clearly an undue invasion of Plaintiffs' privacy. Franklin, 31 F.3d at 876.

  Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994), the case relied on heavily by the Ninth Circuit in Retelle, had involved a search of a home for drugs. The police broke down the door and found that the home was owned by a bedridden man with advanced-stage multiple sclerosis. The man was unable to get out of bed himself or control his bowel movements, but the police had dragged him out of bed anyway, handcuffed him, and left him in another room for two hours with only a t-shirt on while they searched the house in its entirety. In Foxworth, the Ninth Circuit had condluded that treating the disabled man in such a callous and degrading way had violated his Fourth Amendment rights.

  The Supreme Court reversed the divided panel in Retelle in a per curiam opinion. According to the Court, it was reasonable for the police to order the couple out of bed and to detain them briefly under the circumstances:

When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. . . . .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. The test of reasonableness under the Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. . . . .

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

  The per curiam opinion was joined by seven Justices. Justice Stevens wrote a short concurring opinion, joined by Justice Ginsburg, which would have reached the same result on qualified immunity grounds without reaching the merits of the Fourth Amendment issue.