Limits on detention powers in searches examined by high court

By Mark Sherman

Associated Press

WASHINGTON (AP) -- The Supreme Court reacted skeptically to the government's recent argument that police may detain residents of a home to be searched even if they are away from home when the search takes place.

Liberal and conservative justices said they are reluctant to expand police powers that, for officer safety and other reasons, already allow the detention of people found at home during a search authorized by a warrant.

The case before the court involves a Long Island man who was picked up about three-quarters of a mile away from his apartment as police searched it for a gun.

The Fourth Amendment usually requires police to strongly suspect an individual has committed a crime before he can be detained. But the court in 1981 ruled in Michigan v. Summers that police could detain people without suspicion during a search to keep them from doing harm to officers, keep them from fleeing and allowing them to, for example, open a door instead of having the police bash it in.

Justice Ruth Bader Ginsburg said the government was seeking to broaden police authority. "So you are taking the exception, which was tied tightly to the house," Ginsburg said to Justice Department lawyer Jeffrey Wall. "It was an exception to the main Fourth Amendment rule, and now you are asking to have that exception spread."

In this case, Chunon Bailey, also known by the alias of Polo, left his basement apartment in Wyandanch, N.Y., shortly before police began their search. Unaware of the impending search, Bailey and another man got into Bailey's black Lexus and drove away, apparently to get the friend home by 10 p.m. to comply with a condition of his parole.

Officers followed in an unmarked car and stopped the Lexus a few minutes later. Bailey and his friend were handcuffed and taken back to the apartment where, by then, police had found a gun and drugs.

Bailey tried and failed to get courts to throw out anything he said to police when he was stopped and also a key to the apartment police found when they patted him down. He was found guilty of cocaine possession and other crimes and sentenced to 30 years in prison.

Justice Samuel Alito, a former prosecutor who often sides with police, and Justice Stephen Breyer, seemed most open to the government's arguments. Breyer, in particular, worried about creating confusion for police who may want to let someone leave a house before detaining him so as not to tip off others who may still be inside. "I see a recipe for a mess, and the mess could involve physical harm," he said.

But lawyer Kannon Shanmugam, representing Bailey, said the good reasons for preventing someone from leaving while a search takes place should not allow police to pick up someone who already has left home and thus is not likely to threaten officers or disrupt the search.

"And our point is simply that the detention ceases to be truly incident to the search where the individual has left the scene. The justifications for the detention evaporate at that point," Shanmugam said.

Wall tried to persuade the court that police frequently, and for good reason, want to keep someone from leaving the scene of a search, but need a few blocks to catch up.

"Again and again, you see police detaining departing occupants a very short distance from a residence, returning them, not prolonging the detention, not engaging in exploitative questioning, and actually serving the three interests that the court identified in Summers," he said.

But several justices wondered why the same rationale couldn't be used to go to someone's office and hold him there. Justice Anthony Kennedy wondered about showing up at an office at 5 p.m., the same time a search was to take place at the person's home. "Can they detain him at his office so that he doesn't go back. He always goes right home. He takes the Number 3 bus, and he will be there in 20 minutes," Kennedy asked,

Wall said no, but Kennedy said he was skeptical of the answer.

A decision should come by June.

The case is Bailey v. U.S., 11-770.

Published: Tue, Nov 6, 2012