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 apartment, but then recanted when informed that a search was underway there.

The police drove Bailey back to the apartment where the search was ongoing and had already yielded illegal guns and drugs. The keys found on Bailey opened the door to the apartment.

At trial, Bailey sought to suppress both the key and his statement to the police. The district court denied this relief and the United States Court of Appeals for the Second Circuit affirmed the denial of the suppression motion.

The basis for the Second Circuit's ruling was an earlier Supreme Court case, Michigan v. Summers, 452 U.S. 692 (1981). Summers permits the temporary detention (seizure) of a person without a warrant, if such detention is incident to the execution of a valid search of a premises where or near to where that individual is located.

The Supreme Court in Summers set forth three reasons while this type of a warrantless seizure of a person incident to a valid search is permitted. First, the safety of the police officers conducting a search will require officers to secure the premises. This may then also require detaining the occupants of the premises so that the officers can conduct...