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Execution of search warrant — detention of person not in “immediate vicinity”

Bailey v. United States, USSC No. 11-770, 2/19/13

United States Supreme Court decision, reversing and remanding United States v. Bailey, 652 F.3d 197 (2d Cir. 2011)

The Court holds it was not reasonable for police to seize an individual incident to the search of the individual’s residence when the individual was not in the “immediate vicinity” of the place being searched. The holding is an elaboration of the rule from Michigan v. Summers, 452 U.S. 692 (1981), where police detained and later searched an individual who was “descending the front steps” of a house where police were about to execute a search warrant. Id. at 693.

Summers held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. at 705.  Summers justified this rule based on the limited additional instrusive of the detention above and beyond the search itself, and by reference to three law enforcement interests: officer safety, facilitating completion of the search, and preventing flight. Id. at 701-03.  Bailey holds that neither Summers’s rule nor the three law enforcement interests support the seizure of someone, like Bailey, who had left the apartment to be searched and was not in the “immediate vicinity” of the place to be searched when he was stopped. (Slip op. at 6, 11, 13). As the concurrence succinctly puts it, “[b]eyond Summers’[s] spatial bounds, seizures must comport with ordinary Fourth Amendment principles.” (Scalia, J., concurring, at 5).

The basic facts: While some officers began a search of Bailey’s apartment, others followed Bailey when he and a companion left in a car. (Slip op. at 2). The police stopped and detained Bailey almost a mile away from the apartment. (Id.) He was then handcuffed and returned to the apartment. (Id. at 2-3). By that point the officers executing the warrant had found drugs and a gun in plain view. (Id. at 3). Unlike the ordinary Summers situation, where the person is on the premises, there was no need to protect against violence or evidence destruction by Bailey. (Id. at 8, 11). Likewise, Bailey’s absence meant he could not facilitate or hinder the search of the apartment. (Id. at 9-10). And detention away from the person’s home adds a degree of intrusiveness not present in Summers. (Id. at 12-13). Because Bailey was detained at a point “beyond any reasonable understanding of the immediate vicinity of the premises in question” his detention was unlawful. (Id. at 13).

The majority opinion says that because Bailey was clearly beyond the “immediate vicinity” of the apartment,

this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors. (Slip op. at 13).

To the dissent this shows “immediate vicinity” is not a bright line rule, but instead is the substitution of  “a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amendment concerns such as privacy, safety, evidence, destruction, and flight.”   (Breyer, J., dissenting, at 5, 9). No doubt there will be, as the dissent predicts, “case-by-case litigation,” though the dissent’s own interest balancing would lead to the same result.

Lawyers dealing with an issue governed by Bailey might look for guidance not only to the majority’s factors, but to the concurrence by Justice Scalia, which emphasizes that the “immediate vicinity” standard follows from Summers having established “a categorical rule” instead of a balancing test weighing interests of the police and the occupants. Because the general rule is that Fourth Amendment seizures are reasonable only if based on probable cause, Scalia writes, “Summers embodies a categorical judgment that in one narrow circumstance—the presence of occupants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause.” (Scalia, J., concurring at 3). Stress on this “categorical limit”  might provide ammunition for arguing that “immediate vicinity” must be applied very narrowly.

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