Bailey v. U.S.: Detention During Execution of Search Warrant Must be Based on Constitutionally Recognized Interest

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


To understand the Chunon Bailey case, one must begin with a basic understanding of two Supreme Court decisions: Michigan v. Summers and Terry v. Ohio. Summers was decided in 1981 and Terry in 1968. Summers deals with the detention of a suspect incident to the execution of a search warrant while Terry deals with investigatory detention supported by reasonable suspicion. Both cases essentially deal with the reach and protection of the Fourth Amendment; namely, that search and seizures are unreasonable unless based on probable cause. The Supreme Court has long pointed out that prerequisite probable cause has “roots that are deep in our history” which “represent[s] the accumulated wisdom of precedent and experience as to make the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable’ under the Fourth Amendment.”


Thus, at the core, justification of every search/seizure is the probable cause necessary to support it. This is why the Supreme Court has established a framework of “fundamental rules” governing probable cause. For example, the court in Summers held that in the interests of crime detection/prevention and an officer’s safety, the police may detain “the occupants of [a] premises” during the execution of a lawful search. Likewise, when a police officer has reasonable suspicion of criminal activity, he or she may conduct a brief “investigatory stop” without a warrant. The Summers court offered three reasons to justify the detention of an occupant during a premises search: officer safety, preventing flight, and facilitating the completion of the search.


And this brings us back to the Chunon Bailey case. The case began in July 2008 when a confidential informant told the police that he saw a gun in the Wyandanch, New York apartment of a heavy set black man known to him as “Polo” from whom the informant purchased drugs. While the police were obtaining a warrant to search the basement apartment at 103 Lake Drive, two detectives named Richard Sneider and Richard Grabecki maintained a surveillance of the apartment in an unmarked vehicle. As the search team began preparations to conduct the search, Chunon Bailey and an associate named Bryant Middleton exited the gated area of the apartment and got into car parked in a driveway. Both men matched the description of “Polo.” It was nearly 10:00 p.m. when their car pulled away. The two detectives informed the search team that they were going to follow the vehicle and detain the two men. The search team then executed the search warrant.


A short distance from the basement apartment—approximately one mile—the detectives pulled the vehicle over “in a parking lot by a fire station.” They instructed Bailey and Middleton to get out of the car after which they did a “patdown search of both men.” They found a ring of keys on Bailey but no gun. Bailey told the detectives he was coming from his home at 103 Lake Drive. An examination of Bailey’s driver’s license revealed that he lived in Bayshore, New York—the town where the informant told the police “Polo” used to live. Middleton told the detectives that Bailey was giving him a ride home, confirming they had just left Bailey’s 103 Lake Drive apartment. Both men were then handcuffed by the detectives. Bailey asked why. Detective Grabecki responded that “they were being detained incident to the execution of a search warrant at 103 Lake Drive.” Bailey countered: “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.”  It is important to emphasize that the stop and detention were only for purposes of executing the search warrant.


The detectives summoned a patrol car to take the two men back to the 103 Lake Drive apartment. Detective Sneider drove the unmarked vehicle back to the apartment while Grabecki drove Bailey’s vehicle. Upon arrival back at the apartment, the detectives learned that the search team had not only discovered a gun but also drugs, both of which were lying in “plain view.” Bailey and Middleton were placed under arrest. The detectives learned that one of the keys on the ring opened the door to the apartment. Bailey was charged with three federal offenses: possession of cocaine with intent to distribute, possession of a firearm by a felon, and possession of a firearm in connection with a drug trafficking offense.


At his trial, Bailey moved to suppress the apartment key and the statements made to Sneider/Grabecki after he was stopped by the detectives. The trial court denied the motion, finding that his brief detention by the detectives was proper under Summers, or, in the alternative, permissible under the “reasonable suspicion” doctrine of Terry. A jury found him guilty on three offenses and his convictions were upheld by the Second Circuit Court of Appeals under the Summers rationale without addressing the Terry issue. Bailey applied to the Supreme Court for certiorari, arguing the court should resolve a conflict among the Federal circuits about what “justifies the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant.” The Supreme Court agreed to resolve the conflict.


The issue before the court in Bailey was a narrow one: whether the occupant of a residence may be detained away from the premises. The court conducted its analysis under the three criteria for detention under Summers: officer safety, orderly execution of the search and flight prevention. The court elected to leave the Terry issue open for review on remand.

With respect to the safety prong, the Bailey court said: “… In the instant case Bailey had left the [premises] 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 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 warrant would reach beyond the rationale of ensuring the integrity of the search by detaining those who are in fact on the scene.”


The second need for occupant detention is the potential for interference with the search itself. “ … 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 warrant. Had he returned, officers would have been free to detain him at that point.”


Finally, with respect to the concern for flight, the court observed: “… 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 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 of 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. Even if the detention of a former occupant away from the premises could facilitate a later arrest should incriminating evidence be discovered, ‘the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.’”


Essentially Bailey informs that while detention incident to the execution of a search warrant remains permissible, once the occupant has left the premises, his detention must be justified for some other permissible reason. Bailey was stopped at least a mile from the Lake Drive apartment; the police at that juncture did not have probable cause to stop his vehicle derived from the search of his apartment; he was ordered out of the vehicle in public view; and handcuffed and transported in a marked patrol car back to the apartment where his detention continued. Granted, it was “efficient” law enforcement to stop and detain Bailey, as the detectives did, but this efficiency was carried out in violation of the Fourth Amendment. We applaud the Supreme Court for recognizing as much. Mark a rare victory for the constitution before the nation’s high court.


By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization