Well it’s early October, a beautiful time of year here in Atlanta, and also the time when the United States Supreme Court kicks off its new “term.” There are a couple of cases of interest that the Supreme Court will decide in the upcoming term. I will focus on cases that impact our federal and state criminal matters. We will start with one case today, and look at the others in subsequent posts.
First, we have Bailey v. United States. This is an old-fashioned Fourth Amendment appeal, arising out of the execution of a search warrant. Thirty-one years ago, the Supreme Court issued a decision called Michigan v. Summers. In that case, the Supreme Court decided that officers executing a search warrant for contraband may detain the occupants of the premises while the search is conducted. In the past three decades, a substantial conflict has developed among federal courts of appeals and state courts of last resort on the question of whether the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises before the warrant is executed. The Supreme Court will hear the Bailey case to clear up this conflict among the lower courts.
Here is what happened in Bailey. Police officers had a warrant for an apartment. They were staking it out before executing the warrant, and noticed two men leaving the apartment. They followed Mr. Bailey from the apartment to be searched and detained him approximately one mile away. During the detention, the officers discovered a key to the apartment on Bailey’s person, and he made statements linking himself to the apartment. In the course of the search back at the apartment, officers found guns and drugs, and Bailey was later charged with various federal offenses. The federal district court denied Bailey’s motion to suppress the fruits of his detention, and the key was the main evidence used at trial to support the prosecution’s theory that Bailey owned the guns and drugs in the apartment. Bailey was convicted, and on appeal he again argued that the police violated the Fourth Amendment when they stopped him many blocks away from the apartment. The Court of Appeals sided with the Government. After recognizing the conflict among the various courts during the past three decades, the Court of Appeals held that the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises. Bailey thereafter asked the Supreme Court to review the case, and in late September they agreed to do so.
Back when it first decided Summers, the Supreme Court reasoned that detaining a person on the scene who is present while the individual’s own home is being searched is not a whole lot more more intrusive than the search itself. The Court further reasoned that three rationales supported a rule allowing the police to detain a person present while a warrant is being executed: (1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk of harm to the officers; and (3) facilitating the orderly completion of the search. In Bailey, however, the person was far from the house, and the police had not even started executing the warrant, so it would be difficult to argue he might flee from an event that had not yet happened. The “risk of harm” rationale likewise seems weak, in that the safer course would be to let him go away and not be a potential problem. Additionally, taking police away from the scene to follow Bailey seemed to impede, not facilitate, the search.
As we all know, the Supreme Court in the past 40 years has not been kind to our joint rights that are supposedly protected by the Fourth Amendment’s prohibition against unreasonable searches and seizures. Many people get confused, thinking that we are only fighting for people like Mr. Bailey, who after all, had drugs and guns inside his house they they executed a warrant. However, if they can follow and detain Bailey, they can do the same to you and me just because we are present at a place where someone else has done something that causes the police to get search warrants. We will follow this case closely to see if the Supreme Court will protect our joint rights.