What the 'Bailey' Case May Reveal About Supreme Court Ideology

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When it comes to search-and-seizure issues, the justices' opinions don't always fall along liberal/conservative divides.

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Imagine that the police have a warrant to search a house. Could they detain you -- in handcuffs -- just because you happen to be driving away from that house before the search?

That's the issue in Bailey v. United States, which the Supreme Court will hear Thursday. (The case was originally scheduled for Tuesday, but umpire-in-Chief John Roberts declared a rainout due to Hurricane Sandy.)

Though the situation in Bailey is relatively rare, the way the Court decides the case could reveal a lot about the future of Fourth Amendment jurisprudence.

The case arose, like so many Fourth Amendment cases do these days, out of a narcotics investigation. Police got a tip that someone nicknamed "Polo" was selling drugs out of the basement apartment of a house in Islip, New York.

Officers showed up at the house; after obtaining a search warrant, but before they began the search, the officers saw two men -- both of whom matched the tipster's fairly vague description of "Polo" -- walk out of the house and drive away. The police pulled the car over a little less than a mile from the house and placed both men in handcuffs.

Chunon Bailey, one of the two men detained, was prosecuted on federal drug and gun charges based on what was found at the apartment. Some of the government's evidence that Bailey lived there was acquired after he was detained. Bailey argued that his detention violated the Fourth Amendment's prohibition of "unreasonable ... seizures," and that as a result the evidence couldn't be used against him at trial.

The lower courts upheld the seizure, relying on a 1981 case, Michigan v. Summers. There, the Court said that the police can detain someone they find at a house when executing a search warrant. Usually, the Fourth Amendment's ban on unreasonable seizures means that the police can't detain you unless they have probable cause to think you've committed a crime. In Summers, the Court identified several law enforcement needs justifying an exception to that general rule: preventing an occupant from fleeing to avoid arrest, minimizing the risk of harm to police, avoiding the destruction of evidence, and facilitating "the orderly completion of the search." (The idea is that the detained occupant might assist police in opening locked doors and containers.)

Since Summers, the Court has made clear that, when the police detain you at the scene of a search, they can use "reasonable force" -- that is, they can keep you in handcuffs for as long as the search lasts, which can be several hours. But the Court hasn't clarified whether the detention power covers situations where the person actually leaves the premises. As a result, some lower courts, like those in Bailey's case, have upheld such detentions; others have concluded they violate the Fourth Amendment. The Supreme Court took the Bailey case to settle that disagreement.

The justices can be placed on a spectrum in terms of the way they handle Fourth Amendment cases. At one end is Justice Scalia. At the other is Justice Alito.

The briefing in the case is top-notch. As you might expect, the parties spend a lot of time arguing over whether the interests that form the basis of Summers justify seizures of departing occupants. The briefing also reveals interesting strategic choices. Bailey pins his hopes on a 2009 decision, Arizona v. Gant, which addressed whether police can search a car after arresting and handcuffing the driver. In a 5-4 decision, the Court essentially overruled an earlier case and held that such searches were generally impermissible, concluding that the purported justifications -- ensuring police safety and preserving evidence -- simply didn't apply when the arrestee was handcuffed in the back of a squadcar.

Gant isn't directly on point as a legal matter, as it was about searches, not seizures. But Bailey nonetheless makes the case the centerpiece of his argument, in the hope that the Court will see it as analogous and similarly conclude that the purported law enforcement interests don't justify allowing police to seize departing occupants.

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Daniel Epps is an associate at King & Spalding LLP in Washington, D.C. and a former law clerk to Justice Kennedy.

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