In Bailey v. U.S., 2013 U.S. LEXIS 107, the Supreme Court limited a previous holding that allowed police to detain a suspect incident to the search of a residence. Police were getting ready to execute a search warrant at the apartment of defendant Chunon Bailey when detectives spotted Bailey and his associate exit the apartment and drive away. There was no indication that the men were aware of the police presence or the impending search. Detectives followed Bailey for one mile and then stopped the vehicle. The detectives ordered Bailey and his friend out of the vehicle and patted them down. They discovered keys on Bailey that would unlock the apartment subject to the search, and Bailey stated that he resided at the apartment. After being informed that police had a warrant to search his home, Bailey denied living there. Police found guns and drugs in the home, and Bailey was charged with three felonies.
Bailey filed a motion to suppress the key that opened the apartment as well as his statement that he lived there. The trial court denied the motion, finding that the Supreme Court’s decision in Michigan v. Summers, 452 U.S. 692 permitted the stop and seizure of Bailey “as a detention incident to the execution of a search warrant.” The Second Circuit affirmed the trial court’s denial of the motion to suppress, holding that Summers “authoriz[ed] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.” The Supreme Court reversed.
The key question for the Bailey Court to resolve was “whether the seizure of the person was reasonable when he was stopped and detained at some distance away from the premises to be searched when the only justification for the detention was to ensure the safety and efficacy of the search.” The Court held that the seizure was not reasonable. Writing for the majority (joined by Kagan, Roberts, Sotomayor, Scalia, and Ginsburg), Justice Kennedy wrote that the Second Circuit’s holding “departs from the spatial limit that is necessary to confine the rule in light of the substantial intrusions on the liberty of those detained.”
Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale.
The three reasons that the Summers Court upheld seizures incident to the search of a premises – officer safety, the facilitation of the completion of the search, and preventing flight – did not justify the seizure of Mr. Bailey, who was more than a mile away from the residence when he was stopped:
Limiting 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. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.
In Summers, the defendant was detained on a walk leading down from the front steps of the house. Because Summers was physically present on the property when the search of the premises began, the justifications of officer safety, facilitation of the search, and prevention of flight served as “reasonable” factors supporting a warrantless seizure of the defendant. The Bailey Court has placed an important limitation on the Summers holding that should, in practice, significantly limit the power and discretion of officers to stop and seize citizens who are near a premises subject to an impending search.
What Does Bailey Mean for Ohio?
The most recent Ohio Appellate decision citing to Michigan v. Summers is State v. Jester, (12th Dist.) 2012 Ohio 544. The facts in Jester are remarkably similar to those in Bailey. After receiving a tip that drug activity was taking place at a residence, police obtained a search warrant and set up surveillance of the house. Police saw Jester – who, like Bailey, did not have any idea that his house was about to be searched – exit the residence, get in his car and drive away. Police pursued the vehicle but were unable to catch up to it. Jester soon returned to the residence and parked directly in front of the house. Police immediately approached the vehicle, ordered Jester out, and searched him “incident to the search.” The Twelfth District Court of Appeals, citing Summers, upheld Jester’s convictions. Jester, the court held, “was ‘reasonably connected’ to the South Fourth Street residence named in the search warrant. Prior to executing the search warrant, the police observed Jester exit the residence and then return to it shortly thereafter.”
Unlike in Bailey, Jester returned to the residence in question shortly after driving away from it. Had the police successfully caught up to Jester a mile or so down the road when they saw him drive away, they apparently would not have been justified in stopping and seizing him pursuant to the Bailey decision.
What is less clear from this holding, however, is exactly how far away a defendant can be before the “spatial limit” kicks in. Bailey was one mile from the residence, and was not actually trying to flee the area because he was not even aware that the search was about to occur. If Bailey had been, say, one third of a mile away, would a seizure have been reasonable? If Bailey had been aware of the search, then the answer could be yes. Like many decisions involving Fourth Amendment questions, the Bailey opinion does not give us a bright line rule. What it does do is provide citizens greater protection of their personal liberty, and sends a message to law enforcement that their ability to seize suspects incident to a search is not absolute.