Bailey decision from the Second Circuit being challenged in the United States Supreme Court raising the issue: when can police detain an individual prior to executing a search warrant

November 27, 2012
By Michael DelSignore on November 27, 2012 5:19 AM |

As a Massachusetts criminal lawyer, search and seizure issues frequently arise in defending drug crimes. One issue is when can the police detain individual when executing a search warrant. The case of Bailey v. United States raises this issue and the defense lawyers are seeking review in the United States Supreme Court. You can read the filings of the Bailey case on the Scotus Blog.

In 1981 the United States Supreme Court decided the case of Michigan v. Summers, 452 U.S. 692 (1981) and held that individuals in a house that is being lawfully searched may be detained, without arrest, for the duration of the search.

The Bailey case involved the following facts. Prior to the execution of a search warrant, police waited outside the premises and observed two men leaving the home, both of which fit the description they had of a suspect. The officers followed the men as they drove off. Upon stopping the men five minutes later, the men were brought back so that they were present during the search. At the motion hearing, the defense lawyer sought to suppress all evidence found on the defendant as well as statements he made as the fruit of the unlawful detention in violation of the Fourth Amendment.

The Second Circuit Court of Appeals found that the search was proper under Summers and interpreted the case as not imposing a bright line rule as to whether the defendant leaves the premise, but allows for a detention if it is made as soon as practical. The Second Circuit relied on decisions from the Fifth, Sixth and Seventh Circuits which reached similar holdings. The Second Circuit also stated that the intrusion is permissible as a de minimis intrusion. The Second Circuit acknowledged contrary rulings from other circuits but found those decisions misinterpreted the holding of Michigan v. Summers.

In Michigan v. Summers, it was determined that individuals in a location that is being lawfully searched may be detained, without arrest, for the duration of the search. (452 U. S. 692) The detainment in Summers was allowed based on three reasons:

  • To prevent individuals from fleeing once paraphernalia is seized;
  • to provide safety for the officers
  • and to aid in the search, an individual may be detained.

The Bailey case does not involve any of these three situations. The individuals were off of the premises, therefore could not be a threat to the officers; they did not know the location was being searched and therefore, would not have fled upon the discovery of contraband.

As a Massachusetts criminal defense lawyer, the Second Circuit improperly expanded the scope of the Summers decision and should be reversed by the United States Supreme Court. I would expect the Court to grant certiorari given the split of authority among the Circuit Courts of Appeal.

The Court's statement that the detention is a de minimis intrusion is inconsistent with the Fourth Amendment that protects an individuals liberty interest from being infringed without reasonable suspicion or probable cause by a police officer. To transport an individual back to the location of the search has only one purported purpose to obtain incriminating statements during the search, as which occurred in the Bailey case.
Since the justification for the seizure present in Summers was not present in Bailey, I would expect the Court to reject the Second Circuit's expansion of Summers which allows for a seizure if done as soon as practical.

For addition reading on the Bailey decision, you can read the Article Preview of Andrew Taslitz of the Scotus Blog where he provides his commentary on the issue before the Court.