Under the Fourth Amendment, Can a Particular “Search” be Lawful, But an Accompanying Seizure Be Unlawful? The Supreme Court Says “Yes” and Explains How in Bailey v. United States of America

The Fourth Amendment sets forth every citizen’s right to be free from unreasonable searches and seizures. The two active verbs in the Amendment (i.e. search and seize) are often lumped together, as if part of an indivisible act or one legal concept.

But they are not. In any one case, a search and/or a seizure can occur singly or in combination and can differ in timing, order and consequence. While there is some surface logic to the assumption that a valid search will inevitably beget a valid seizure, this is just not the law.

The fact that a search is lawful does not necessarily mean that a contemporaneous or resulting seizure (of say, a person) will be lawful as well. This was the question addressed by the Supreme Court last week in Bailey v. United States.

The facts in Bailey are rather straightforward. The police in Wyandanch, New York obtained a search warrant to search a basement apartment for a handgun. While the police had the apartment under surveillance, they observed the petitioner Bailey and another man depart from an area above the basement apartment, enter a car and drive away.

The police followed the two men until they were about a mile from the apartment and then stopped them. They searched Bailey and found some keys. Bailey initially admitted that he resided in the basement apartment, but then recanted when informed that a search was underway there.

The police drove Bailey back to the apartment where the search was ongoing and had already yielded illegal guns and drugs. The keys found on Bailey opened the door to the apartment.

At trial, Bailey sought to suppress both the key and his statement to the police. The district court denied this relief and the United States Court of Appeals for the Second Circuit affirmed the denial of the suppression motion.

The basis for the Second Circuit’s ruling was an earlier Supreme Court case, Michigan v. Summers, 452 U.S. 692 (1981). Summers permits the temporary detention (seizure) of a person without a warrant, if such detention is incident to the execution of a valid search of a premises where or near to where that individual is located.

The Supreme Court in Summers set forth three reasons while this type of a warrantless seizure of a person incident to a valid search is permitted. First, the safety of the police officers conducting a search will require officers to secure the premises. This may then also require detaining the occupants of the premises so that the officers can conduct the search without those occupants interfering or posing any kind of a physical danger to the police. Second, it is in the government’s interest that all searches be completed effectively and competently. Occupants of a premise to be searched could hide or destroy evidence or “simply get in the way.” Third, the Supreme Court in Summers recognized the government’s strong interest in preventing the flight of affected individuals, which also serves to protect the integrity of the search. If officers have to be concerned about a flight risk, they may rush the search and miss evidence, cause unnecessary damage or otherwise compromise the careful execution of the warrant.

Balanced against these considerations, the temporary seizure of an occupant of a premises being searched, “represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Summers, 452 U.S. 703. In other words, these limited detentions are reasonable under the Fourth Amendment because the short-term intrusion on personal liberty is outweighed by the law enforcement interests at stake.

This all makes good sense. But the Supreme Court last week in Bailey reversed the district court and the Second Circuit and held the seizure of the defendant to be invalid. Why?

The answer is to be found in the distance the seizure of Bailey took place from the search premises. Remember, Bailey was stopped and seized while travelling in a car a mile away from the search premises. Justice Kennedy, writing for the Court, recognized the on-going validity of the Summers rule, but held it to be limited to the physical area in which an individual poses a real threat to the safe and proper execution of the search warrant.

Bailey was not seized at the search premises, but rather at a point beyond any reasonable understanding of what the “immediate vicinity” of the basement apartment was. Bailey was just too far away. He was not in the “immediate vicinity.”

Since Bailey was no longer within the immediate vicinity of the apartment, the Summers case could not justify his seizure, even though there was nothing wrong with the underlying search of the apartment.

The matter was remanded for further proceedings.