Under The Fourth Amendment, Can A Particular 'Search' Be Lawful, But An Accompanying Seizure Be Unlawful? The Supreme Court Says 'Yes' And Explains How In Bailey V. United States Of America

The Fourth Amendment sets forth every citizen's right to be free from unreasonable searches and seizures. The two active verbs in the Amendment (i.e. search and seize) are often lumped together, as if part of an indivisible act or one legal concept.

But they are not. In any one case, a search and/or a seizure can occur singly or in combination and can differ in timing, order and consequence. While there is some surface logic to the assumption that a valid search will inevitably beget a valid seizure, this is just not the law.

The fact that a search is lawful does not necessarily mean that a contemporaneous or resulting seizure (of say, a person) will be lawful as well. This was the question addressed by the Supreme Court last week in Bailey v. United States.

The facts in Bailey are rather straightforward. The police in Wyandanch, New York obtained a search warrant to search a basement apartment for a handgun. While the police had the apartment under surveillance, they observed the petitioner Bailey and another man depart from an area above the basement apartment, enter a car and drive away.

The police followed the two men until they were about a mile from the apartment and then stopped them. They searched Bailey and found some keys. Bailey initially admitted that he resided in the basement...