Analysis of oral argument in Bailey v. United States from Massachusetts criminal defense lawyer

The Supreme Court recently heard oral argument in Bailey v. United States on November 1st 2012. The predominant issue in Bailey is whether or not the precedent set forth in Michigan v. Summers, 452 U.S. 692 (1981), which allows an officer to detain an individual on the premises of a location being searched, extends to the detention of an individual the officer saw leaving the location to be searched and is no longer in the immediate vicinity.

While it can be difficult to predict how the Justices will decide a case based on the oral argument, it appears as though the Justice will decline to extend the Summers case as argued by the Government. The Government argued that the stop of Bailey away from the residence to be searched was permissible under the rationale of Summers because Bailey could have returned to the residence and threatened the safety of the officers.

The defendant argues that the Summers exception to typical warrant and detention standards should not be interpreted broadly and, in fact, should be interpreted rather narrowly. Once the individual is off of the location to be searched it is not likely they will return and pose any sort of threat to the safety of the officers or the quality of the search, and Summers would not apply, as argued by the defense.

The Justices seemed to agree with the argument of the defendant that there is no risk to officer safety as the defendant did not know a search was even being conducted. Further, the justice suggested that in the Bailey case it is troubling that he was brought back to the residence when the officers already found the incriminating evidence. While the Summers case suggests that the reason a defendant can be detained is to assist with the orderly completion of the search, the Court mocked this rationale asking why would you need to detain someone to help with the search. It appears as thought the justice understand the real rationale for bring the defendant to the residence is to obtain incriminating statements. Typically, a Massachusetts criminal lawyer would file a motion to suppress on 4th Amendment grounds and based on Miranda in cases similar to Bailey.

Justice Scalia suggested that the Government’s argument that a detention is permissible if made reasonably practical after the individual leaves the residence is a test which provides no clear guidance to law enforcement. The Government suggested that a detention of an individual leaving the property would be permissible if they had an “observable connection” to the residence.

I expect the United States Supreme Court to overturn the Second Circuit decision holding that the Fourth Amendment requires a warrant to contain a description of the person or thing to be seized and a description of the place to be searched. When a person leaves a premise that is subject to a search warrant, the police cannot detain that person without having reasonable suspicion and most have probable cause to further detain the individual beyond an investigatory stop authorized by the Terry decision.

Justice Scalia framed the argument, in a way that appears to reflect the views of the other Justices on the Court: that when a person leaves a residence subject of a search warrant there is no Fourth Amendment basis for the seizure and that the the proposed expansion of the Summer’s test based on officer safety is not justified. The Court seemed to reject the policy argument that there is a risk to officer safety as there is always a risk of a person returning to the residence regardless of whether they are seen leaving the premise.

First, the Justice stated that there is alway a risk of someone returning to the property whether or not the person is observed leaving and that is why officers secure the premise. As a Massachusetts criminal defense attorney, I would expect the Court to hold that an individual cannot be detained under the Summers decision once they have left the property.

To read Andrew Taslitz’s article on the oral argument on the Scotus Blog, click here.

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