Bailey v. United States

568 U.S. 186

Case Year: 2012

Case Ruling: 6-3, Reversed and Remanded

Opinion Justice: Kennedy

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Ginsburg, Kagan, Roberts, Scalia, Sotomayor


1st Concurring Opinion

Author: Scalia

Joiner(s): Ginsburg, Kagan

1st Dissenting Opinion

Author: Breyer

Joiner(s): Thomas, Alito

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


At 8:45 p.m. on July 28, 2005, police obtained a warrant to search a basement apartment at 103 Lake Drive in Wyandanch, New York for a .380-caliber handgun. A confidential informant had told police that he had seen the gun when he was in the apartment to buy drugs from a man known as Polo.

As the search unit prepared to execute the warrant, two detectives conducted surveillance in an unmarked car outside the apartment. About 9:56 p.m., the detectives spotted two men—petitioner Chunon Bailey and Bryant Middleton—leaving a gated area above the basement apartment and entering a car parked in the driveway. Both matched the general physical description of Polo. The detectives told the search unit that they would follow the car and detain the two men. In the meantime, the search team executed the search warrant at the apartment.

After following the car for about a mile, the detectives pulled it over, ordered Bailey and Middleton to get out, and did a patdown search of both. The detectives found no weapons but discovered a key ring in Bailey’s pocket. Bailey said he was coming from his home at 103 Lake Drive but his driver’s license showed his address as Bayshore, New York, the town where the confidential informant told the police the suspect, Polo, used to live. The detectives handcuffed both men. When Bailey asked why, Gorbecki said that they were being detained incident to the execution of a search warrant at 103 Lake Drive. Bailey responded: “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.”

By the time the detectives and the two men returned to 103 Lake Drive, the search team had discovered a gun and drugs inside the apartment. Bailey and Middleton were placed under arrest, and Bailey’s keys were seized incident to the arrest. Officers later discovered that one of Bailey’s keys opened the door of the basement apartment.

Bailey was charged with several federal crimes, including possession of cocaine with intent to distribute. At trial Bailey moved to suppress the apartment key and the statements he made when stopped by the detectives on the ground that the came from an unreasonable seizure. The district court disagreed, holding that Bailey’s detention was permissible under the U.S. Supreme Court’s decision in Michigan v. Summers (1981)—as a detention incident to the execution of a search warrant. In the alternative, it held that Bailey’s detention was lawful as an investigatory detention under Terry v. Ohio (1968). A jury found Bailey guilty.

On the appeal, the Second Circuit ruled that Bailey’s detention was proper. It interpreted this Court’s decision inSummers to “authoriz[e] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.” Because it found Bailey’s detention justified by Summers, the Court of Appeals did not address the trial court’s alternative holding that the stop was permitted under Terry.



The Federal Courts of Appeals have reached differing conclusions as to whether Michigan v. Summers justifies the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. This Court granted certiorari to address the question.

The Fourth Amendment, applicable through the Fourteenth Amendment to the States, provides: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . particularly describing the place to be searched, and the persons or things to be seized.” This Court has stated “the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause” to believe that the individual has committed a crime . . .

Within the framework of these fundamental rules there is some latitude for police to detain where “the intrusion on the citizen’s privacy ‘was so much less severe’ than that involved in a traditional arrest that ‘the opposing interests in crime prevention and detection and in the police officer’s safety’ could support the seizure as reasonable.”

In Michigan v. Summers, the Court defined an important category of cases in which detention is allowed without probable cause to arrest for a crime. It permitted officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.” The rule in Summers extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers . . .

In Summers and later cases the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant. In Summers, the defendant was detained on a walk leading down from the front steps of the house . . . Here, however, petitioner left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. The issue is whether the reasoning in Summers can justify detentions beyond the immediate vicinity of the premises being searched. An exception to the Fourth Amendment rule prohibiting detention absent probable cause must not diverge from its purpose and rationale. It is necessary, then, to discuss the reasons for the rule explained in Summers to determine if its rationale extends to a detention like the one here.

In Summers, the Court recognized three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: officer safety, facilitating the completion of the search, and preventing flight.

The first interest identified in Summers was “the interest in minimizing the risk of harm to the officers.” . . .

When law enforcement officers execute a search warrant, safety considerations require that they secure the premises, which may include detaining current occupants. By taking “unquestioned command of the situation,” the officers can search without fear that occupants, who are on the premises and able to observe the course of the search, will become disruptive, dangerous, or otherwise frustrate the search . . .

It is likely, indeed almost inevitable in the case of a resident, that an occupant will return to the premises at some point; and this might occur when the officers are still conducting the search. Officers can and do mitigate that risk, however, by taking routine precautions, for instance by erecting barricades or posting someone on the perimeter or at the door. In the instant case Bailey had left the premises, apparently without knowledge of the search. He posed little risk to the officers at the scene. If Bailey had rushed back to his apartment, the police could have apprehended and detained him under Summers.There is no established principle, however, that allows the arrest of anyone away from the premises who is likely to return.

The risk, furthermore, that someone could return home during the execution of a search warrant is not limited to occupants who depart shortly before the start of a search. The risk that a resident might return home, either for reasons unrelated to the search or after being alerted by someone at the scene, exists whether he left five minutes or five hours earlier. Unexpected arrivals by occupants or other persons accustomed to visiting the premises might occur in many instances. Were police to have the authority to detain those persons away from the premises, the authority to detain incident to the execution of a search warrant would reach beyond the rationale of ensuring the integrity of the search by detaining those who are in fact on the scene.

The risk that a departing occupant might notice the police surveillance and alert others still inside the residence is also an insufficient safety rationale to justify expanding the existing categorical authority to detain so that it extends beyond the immediate vicinity of the premises to be searched. If extended in this way the rationale would justify detaining anyone in the neighborhood who could alert occupants that the police are outside, all without individualized suspicion of criminal activity or connection to the residence to be searched. This possibility demonstrates why it is necessary to confine theSummers rule to those who are present when and where the search is being conducted.

The second law enforcement interest relied on in Summers was that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” This interest in efficiency derives from distinct, but related, concerns.

If occupants are permitted to wander around the premises, there is the potential for interference with the execution of the search warrant. They can hide or destroy evidence, seek to distract the officers, or simply get in the way. Those risks are not presented by an occupant who departs beforehand. So, in this case, after Bailey drove away from the Lake Drive apartment, he was not a threat to the proper execution of the search. Had he returned, officers would have been free to detain him at that point. A general interest in avoiding obstruction of a search, however, cannot justify detention beyond the vicinity of the premises to be searched.

Summers also noted that occupants can assist the officers. Under the reasoning in Summers, the occupants’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.” This justification must be confined to those persons who are on site and so in a position, when detained, to at once observe the progression of the search; and it would have no limiting principle were it to be applied to persons beyond the premises of the search. Here, it appears the police officers decided to wait until Bailey had left the vicinity of the search before detaining him. In any event it later became clear to the officers that Bailey did not wish to cooperate. And, by the time the officers brought Bailey back to the apartment, the search team had discovered contraband. Bailey’s detention thus served no purpose in ensuring the efficient completion of the search.

The third law enforcement interest addressed in Summers was the “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” The proper interpretation of this language, in the context ofSummers and in the broader context of the reasonableness standard that must govern and inform the detention incident to a search, is that the police can prohibit an occupant from leaving the scene of the search. As with the other interests identified in Summers, this justification serves to preserve the integrity of the search by controlling those persons who are on the scene. If police officers are concerned about flight, and have to keep close supervision of occupants who are not restrained, they might rush the search, causing unnecessary damage to property or compromising its careful execution. Allowing officers to secure the scene by detaining those present also prevents the search from being impeded by occupants leaving with the evidence being sought or the means to find it.

The concern over flight is not because of the danger of flight itself but because of the damage that potential flight can cause to the integrity of the search. This interest does not independently justify detention of an occupant beyond the immediate vicinity of the premises to be searched. The need to prevent flight, if unbounded, might be used to argue for detention, while a search is underway, of any regular occupant regardless of his or her location at the time of the search. If not circumscribed, the rationale of preventing flight would justify, for instance, detaining a suspect who is 10 miles away, ready to board a plane. The interest in preventing escape from police cannot extend this far without undermining the usual rules for arrest based on probable cause or a brief stop for questioning under standards derived from Terry [v. Ohio] . . .

In sum, of the three law enforcement interests identified to justify the detention in Summers, none applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Any of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search. This would give officers too much discretion. The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched . . .

In Summers, the Court recognized the authority to detain occupants incident to the execution of a search warrant not only in light of the law enforcement interests at stake but also because the intrusion on personal liberty was limited. The Court held detention of a current occupant “represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” . . .

Where officers arrest an individual away from his home, however, there is an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest. As demonstrated here, detention beyond the immediate vicinity can involve an initial detention away from the scene and a second detention at the residence. In between, the individual will suffer the additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest. The detention here was more intrusive than a usual detention at the search scene. Bailey’s car was stopped; he was ordered to step out and was detained in full public view; he was handcuffed, transported in a marked patrol car, and detained further outside the apartment. These facts illustrate that detention away from a premises where police are already present often will be more intrusive than detentions at the scene.

Summers recognized that a rule permitting the detention of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search. Because this exception grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed.

A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. The police action permitted here&mash;the search of a residence—has a spatial dimension, and so a spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur. Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.

Here, petitioner was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question; and so this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors . . .

Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of a premise to be searched, however, detentions must be justified by some other rationale. In this respect it must be noted that the District Court, as an alternative ruling, held that stopping petitioner was lawful underTerry. This opinion expresses no view on that issue. It will be open, on remand, for the Court of Appeals to address the matter and to determine whether, assuming the Terry stop was valid, it yielded information that justified the detention the officers then imposed.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


I join the Court’s opinion. I write separately to emphasize why the Court of Appeals’ interest-balancing approach to this case—endorsed by the dissent—is incompatible with the categorical rule set forth in Michigan v. Summers (1981) . . .

It bears repeating that the “general rule” is “that Fourth seizures are ‘reasonable’ only if based on probable cause.”Summers embodies a categorical judgment that in one narrow circumstance—the presence of occupants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause. Summers itself foresaw that without clear limits its exception could swallow the general rule: If a “multifactor balancing test of ‘reasonable police conduct under the circumstances’” were extended “to cover all seizures that do not amount to technical arrests,” it recognized, the “ ‘protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases.’ ” The dissent would harvest from Summers what it likes (permission to seize without probable cause) and leave behind what it finds uncongenial (limitation of that permission to a narrow, categorical exception, not an open-ended “reasonableness” inquiry). Summers anticipated that gambit and explicitly disavowed the dissent’s balancing test.

Summers’ clear rule simplifies the task of officers who encounter occupants during a search. “[I]f police are to have workable rules, the balancing of the competing interests . . . ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’ ” But having received the advantage of Summers’ categorical authorization to detain occupants incident to a search, the Government must take the bitter with the sweet: BeyondSummers’ spatial bounds, seizures must comport with ordinary Fourth Amendment principles.


Did the police act reasonably when they followed (for 0.7 miles), and then detained, two men who left a basement apartment as the police were about to enter to execute a search warrant for a gun? The Court of Appeals for the Second Circuit found that the police action was reasonable because (1) the “premises [were] subject to a valid search warrant,” (2) the detained persons were “seen leaving those premises,” and (3) “the detention [was] effected as soon as reasonably practicable.” In light of the risks of flight, of evidence destruction, and of human injury present in this and similar cases, I would follow the approach of the Court of Appeals and uphold its determination . . .

[G]iven Summers, only one question is open. In Summers the police detained the occupant before he left “the sidewalk outside” of the house. Here the police, for good reason, permitted the occupants to leave the premises and stopped them a few blocks from the house. The resulting question is whether this difference makes a constitutional difference. In particular, which is the right constitutional line to demarcate where a Summers detention may be initiated? Is it the Court’s line, drawn at the “immediate vicinity” of the house? Or is it the Second Circuit’s line, drawn on the basis of what is “reasonably practicable”? I agree, of course, with the concurrence that the question involves drawing a line of demarcation granting a categorical form of detention authority. The question is simply where that line should be drawn.

The Court in Summers rested its conclusion upon four considerations, each of which strongly supports the reasonableness of Bailey’s detention, and each of which is as likely or more likely to support detention of an occupant of searchable premises detained “as soon as reasonably practicable,” as it is to support the detention of an occupant detained “within the immediate vicinity” of those premises. First, the Court in Summers found “[o]f prime importance . . . the fact that the police had obtained a warrant to search [the occupant’s] house for contraband.” That fact meant that the additional detention-related “invasion of the privacy of the persons who resided there” was “less intrusive” than in a typical detention. The same is true here and always true in this class of cases.

Second, the Court in Summers said that the detention was justified in part by “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” This factor, which Summers identifies as the “[m]ost obvious” rationale supporting detention, will be present in all Summers detentions. Summers applies when police have a search warrant for contraband, and any occupant departing a residence containing contraband will have incentive to flee once he encounters police. Indeed, since here the warrant itself described the possessor of the unlawful gun in terms that applied to both of the detained occupants, the strength of this interest is equal to or greater than its strength in Summers.

Third, the Court in Summers said that the detention was justified in part by “the interest in minimizing the risk of harm to the officers.” The strength of this interest is greater here than in Summers, for here there was good reason, backed by probable cause, to believe that “[a] chrome .380 handgun, ammunition, [and] magazine clips” were on the premises. [T]he interest in minimizing harm to officers is compromised by encouraging them to initiate searches before they are prepared to do so safely.

Fourth, the Court in Summers said that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” The strength of this interest here is equal to its strength in Summers.

The Court in Summers did not emphasize any other consideration.

There is, however, one further consideration, namely an administrative consideration. A bright line will sometimes help police more easily administer Fourth Amendment rules, while also helping to ensure that the police do not go beyond the bounds of the reasonable. The majority, however, offers no easily administered bright line. It describes its line as one drawn at “the immediate vicinity of the premises to be searched,” to be determined by “a number of factors . . . including [but not limited to] the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” The majority’s line invites case-by-case litigation although, divorced as it is from interests that directly motivate the Fourth Amendment, it offers no clear case-by-case guidance.

In any event, as the lower courts pointed out, considerations related to the risks of flight, of evidence destruction, and of physical danger overcome any administrative advantages. Consider why the officers here waited until the occupants had left the block to stop them: They did so because the occupants might have been armed.

Indeed, even if those emerging occupants were not armed (and even if the police knew it), those emerging occupants might have seen the officers outside the house. And they might have alerted others inside the house where, as we now know (and the officers had probable cause to believe), there was a gun lying on the floor in plain view. Suppose those inside the house, once alerted, had tried to flee with the evidence. Suppose they had destroyed the evidence. Suppose that one of them had picked up the gun and fired when the officers entered. Suppose that an individual inside the house (perhaps under the influence of drugs) had grabbed the gun and begun to fire through the window, endangering police, neighbors, or families passing by (informant describing gun’s relation to drugs in the house).

Considerations of this kind reveal the dangers inherent in the majority’s effort to draw a semi-bright line. And they show the need here and in this class of cases to test the constitutionality of the details of a search warrant’s execution by taking more directly into account concerns related to safety, evidence, and flight, i.e., the kinds of concerns more directly related to the Fourth Amendment’s “ultimate touchstone of . . . reasonableness.” . . .

In sum, I believe that the majority has substituted a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amendment concerns such as privacy, safety, evidence destruction, and flight. In my view, these latter considerations should govern the Fourth Amendment determination at issue here. I consequently dissent.