By Anna-Rose Mathieson, a counsel in the appellate group for O’Melveny & Myers, and a co-author of two amicus briefs for the National Association of Criminal Defense Lawyers in Bailey v. United States.
Chunon Bailey was pulled over by the police. The officers told him to exit his car, patted him down, and confiscated his keys, wallet, and car. The officers had not seen him break any laws, and found nothing incriminating during their search. They nevertheless questioned and handcuffed Bailey, and drove him away in the back of a police car.
Today the Supreme Court considers whether the search and seizure of Bailey was justified based on the sole fact that Bailey had recently left an apartment that the police had a warrant to search. The genesis of this issue is a case decided thirty years ago, Michigan v. Summers, where the Court ruled that police officers executing a search warrant for contraband can detain all occupants of a dwelling while searching the premises. Bailey was no longer on the premises -- the police had watched him leave the house, then followed him for nearly a mile before detaining him -- but the court below thought the rule should be extended to those who had recently left the premises. This extension is significant because the Summers rule gives police broad powers: unlike most Fourth Amendment cases, where the police must show individualized suspicion as to the specific person searched or seized, the Summers rule affords police the power to detain anyone for the duration of the search, even if the person has no apparent connection to the alleged crime and appears totally harmless. And the police can, and often do, handcuff the occupants, even when the search goes on for hours.