Rethinking the Justifications for a Fourth Amendment Rule: Bailey v. United States

November 1, 2012
Guest Post

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. 

Summers is not one of the Court’s best reasoned opinions. To be sure, the rule that police may detain any occupants of a house while they execute a search warrant makes some sense. Police are rushing into what can be a dangerous situation and may lack the time to question the occupants and assess who is a realistic danger. But the Court did not stop at a police-safety justification for the rule. Instead, the Court said the rule was also justified to facilitate “the orderly completion of the search” by forcing the occupants to remain in case their assistance was needed with opening locked cupboards and doors. But the police cannot compel people to assist in a search, and individuals can decide whether they wish to do so without being held captive.  There are few people who become more cooperative by being handcuffed than being asked nicely.

The third justification is even worse: the Court said the rule was needed to prevent the occupants from fleeing in the event that police find evidence of a crime. This has some intuitive appeal, as it is obviously easier for police executing a search warrant to have any potential arrestees already handcuffed. But as a Fourth Amendment justification, it makes no sense. Summers operates in precisely those situations where the police would not otherwise have sufficient grounds to detain the person. If the police had reasonable suspicion that the person was a threat or engaged in criminal activity that would serve as sufficient justification for detention under a variety of other doctrines. The idea that the police can seize someone just because they might later come across evidence against the person is frightening. No other Fourth Amendment doctrine allows the seizure of a person simply as a prophylactic measure to aid police efficiency.  

The Summers Court could have justified its rule based only on the police-safety rationale. By throwing in other justifications to make the rule appear to have a stronger foundation, the Court confused the issue for later courts. Chunon Bailey’s case is a prime example: the Court in Summers only extended the rule to “occupants” of the premises, but the court below concluded that the justifications announced in Summers applied here as well, even though Bailey was a mile away. 

Allowing the police to detain recent occupants certainly helps ensure that those individuals are at hand if evidence for an arrest is found, and in theory bringing them back to the house might mean they would agree to assist police in opening locked doors. But the police safety rationale is much more tenuous when the person has left the premises. Entering an inhabited house has obvious perils for the police, but when an occupant has left with no apparent indication that he knows about the impending search, diverting police resources to follow and detain him seems to provide little benefit to officer safety.

The government’s brief suggests that a recent occupant of the premises could be tipped off about the search and return to attack the officers. The briefs of both Bailey and amici ACLU pointed out that this is a slippery slope; if extensions to the rule can be justified based on the fear that an occupant might return to take on an entire SWAT team, there is no reason to limit the rule to those who have recently left the premises. Rather than proposing a clear boundary for the doctrine, the government’s brief somewhat surprisingly appeared to slide all the way down to the bottom of the slope, arguing that the Summers automatic-detention rule applies to anyone who usually lives in the house, regardless of whether they were near the house when the police began the search. If the Court accepts this theory, the government could try to detain any resident of a house to be searched, whether they were at work or grocery shopping, before the police had uncovered sufficient evidence linking them to the crime (or indeed, even sufficient evidence that there was a crime). 

There is reason to hope that this conclusion may be too much for the Court to swallow. In a recent case, the Court rejected an analogous attempt to bootstrap further intrusions on individual liberty based on a tenuous connection to officers’ well-being. Bailey presents the Court with a similar opportunity to correct course and focus on the proper justification for the Summers rule.  If it is safer to let a suspect leave the premises than detain him onsite during the execution of a search warrant, then the police should simply let him leave, and arrest him only if he returns or if the search turns up evidence against him. If the Court takes this opportunity to critically examine the justification for the Summers rule, it will hold that the categorical detention of those no longer on the premises is not justified under the Fourth Amendment, and rule in favor of Chunon Bailey.