A blog of the Philadelphia Bar Association’s Criminal Justice Section


By Burt Rose

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In BAILEY v. UNITED STATES,  No. 11–770, decided February 19, 2013, the U.S. Supreme Court reversed a ruling of the UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 652 F. 3d 197. Justice KENNEDY delivered the opinion of the Court, in which ROBERTS, C. J., SCALIA, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. Justice SCALIA filed a concurring opinion, in which GINSBURG and KAGAN, JJ., joined. Justice BREYER filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.


The facts were that while police were preparing to execute a warrant to search a basement apartment for a handgun, detectives conducting surveillance in an unmarked car outside the apartment saw two men―later identified as petitioner Chunon Bailey and Bryant Middleton―leave the gated area above the apartment, get in a car, and drive away. The detectives waited for the men to leave and then drive after them for about a mile before stopping the car. They found keys during a pat down search of Bailey, who initially said that he resided in the apartment but later denied it when informed of the search. Both men were handcuffed and driven in a patrol car to the apartment, where the search team had already found a gun and illicit drugs. After arresting the men, police discovered that one of Bailey’s keys unlocked the apartment’s door. At trial, the District Court denied Bailey’s motion to suppress the apartment key and the statements he made to the detectives when stopped, holding that Bailey’s detention was justified under Michigan v.Summers, 452 U. S. 692 (1981), as a detention incident to the execution of a search warrant. Summers permitted officers executing a search warrant to detain the occupants of the premises “while a proper search is conducted.”


Justice Kennedy held that the rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was not in the immediate vicinity of the premises in question. The petitioner left the apartment before the search began and was detained nearly a mile away. Bailey posed little risk to the officers at the scene as he was without knowledge of the search. Had he returned on his own, he could have been apprehended and detained under Summers.Because petitioner was detained at a point beyond any reasonable understanding of immediate vicinity, his detention had to be justified by some other rationale, such as a Terry stop, which the Court did not decide.


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