Detention of a Suspect During Search Warrant

by Charles Gillingham

The United States Supreme Court recently took of up the question of whether officers may detain a suspect incident to a search warrant if the detention was not near his residence.  Under the Facts of Bailey v. U.S. (2013) 133 S. Ct. 1031, the court said no. 


At 8:45 p.m. on July 28, 2005, local police obtained a warrant to search a residence for a .380-caliber handgun. The residence was a basement apartment at 103 Lake Drive, in Wyandanch, New York. A confidential informant had told police he observed the gun when he was at the apartment to purchase drugs from "a heavy set black male with short hair" known as "Polo." App. 16-26. As the search unit began preparations for executing the warrant, detectives conducted surveillance in an unmarked car outside the residence. At 9:56 p.m., those officers observed two men - later identified as Bailey and Bryant Middleton - leave the gated area above the basement apartment and enter a car parked in the driveway. Both matched the general physical description of "Polo" provided by the informant. There was no indication that the men were aware of the officers' presence or had any knowledge of the impending search. The detectives watched the car leave the driveway. They waited for it to go a few hundred yards down the street and followed. The detectives informed the search team of their intent to follow and detain the departing occupants. The search team then executed the search warrant at the apartment.

The two detectives tailed Bailey's car for about a mile - and for about five minutes - before pulling the vehicle over in a parking lot by a fire station. They ordered the defendant and Middleton out of the car and did a patdown search of both men. The officers found no weapons but discovered a ring of keys in Bailey's pocket.

Bailey identified himself and said he was coming from his home at 103 Lake Drive. His driver's license, however, showed his address as Bayshore, New York, the town where the confidential informant told the police the suspect, "Polo," used to live. Bailey's passenger, Middleton, said Bailey was giving him a ride home and confirmed they were coming from Bailey's residence at 103 Lake Drive. The officers put both men in handcuffs. Bailey asked why and the detectives stated that they were being detained incident to the execution of a search warrant at 103 Lake Drive.  Defendant Bailey responded: "I don't live there. Anything you find there ain't mine, and I'm not cooperating with your investigation." 

The detectives called for a patrol car to take both suspects back to the Lake Drive apartment. One detective drove the unmarked car back, while the other used the set of keys to drive Bailey's car back to the search scene. By the time the group returned to 103 Lake Drive, the search team had discovered a gun and drugs in plain view inside the apartment. Both suspects were placed under arrest, and Bailey's keys were seized incident to the arrest. Officers later discovered that one of the keys opened the door of the basement apartment.

Bailey was charged with drug trafficking crimes. He filed a motion to suppress the evidence arguing that his detention was unlawful as it took place over a mile from the residence.  His initial motions were denied and he appealed all the way to the USSC. 



The Court acknowledged that pursuant to an earlier decision, Maryland v. Summers (1991) 226 1670, officers may detain anyone at the premises subject to the warrant when the officers arrive to serve the warrant.  The Court analyzed the facts of the Bailey case against the reasoning of Summers.

Summers allows officers to detain a suspect who is outside of the location to be searched only when the person is in the immediate vicinity of the location.  The reason for that is to protect the officers who are involved in the search, insure the integrity of the search and prevent the flight of suspects located at the scene in the event incriminating evidence is found. 

Because Bailey was one mile away at the time of the detention the Court held the officers who detained Bailey did not have the right to do so incident to the search warrant.  Bailey did not, at that point, pose a threat to the searching officers, did not pose a threat to the orderly search of the residence, nor was there evidence Bailey intended to flee. Indeed, there was no evidence that Bailey even knew of the search.  The Court did say, however, the Summers case would allow the detention of an individual who either left the residence and returned or who approached the residence and appeared to either be a threat to the officers or to the search. 

Although the  Court held that under these circumstances the officers did not have the ability to detain the Bailey incident to the service of the search warrant, the Court sent the case back to decide whether the officers had reasonable suspicion under Terry v. Ohio, to detain Bailey.  Of course, the test then will be whether the officers had reasonable suspicion to believe that Bailey was implicated in the crime that they were investigating subject to the warrant.