A Bust Too Far

The Supreme Court, in a 6-3 split decision, figured out something that the Second Circuit couldn't: no rubber band can stretch a mile.  In Bailey v. United States, the Court held that Chunon Bailey's seizure about a mile away from an apartment where a search warrant was being executed wasn't close enough.

Before anyone says "duh," bear in mind that this wasn't the outcome below, and failed to capture the votes of three justices.  The problem wasn't that these jurists were distance impaired, but that their vision was fuzzy by one critical fact: they guy was guilty.  That's when the pull out the balancing test.

As the New York Times editorial explains:

[O]fficers in a small New York town got a warrant to search for a handgun in an apartment allegedly used by a drug dealer. Detectives conducting surveillance observed two men, both matching a description of the dealer, get in a car near the apartment. The detectives followed the car for about a mile before making the stop. One of the men was Chunon Bailey. The officers handcuffed both men and drove them back to the apartment. The search team found a gun and cocaine. One of Mr. Bailey’s keys fit the apartment door. Mr. Bailey was convicted of drug trafficking and gun possession, and sentenced to 30 years in prison.

The rationale below was that the police waited until it was "reasonable" to stop and seize him, despite the fact that he left the apartment before the warrant was executed (meaning that he didn't flee), was neither physically present within the apartment nor in its immediate vicinity, and drove away because he, for whatever reason, felt like driving away.

Mind you, they had no warrant to arrest Bailey.  They had a warrant to search an apartment. Until they conducted that search, they had no reason to arrest Bailey. But then, he was guilty.

The majority opinion, by Justice Kennedy, put in some effort to dispel the dissent's contention that this was a mere limited detention, reasonable if one is inclined to allow cops sufficient latitude to do anything they please.  After all, when the police seized Bailey and returned him to the apartment, it was only "detention," particularly in light of the absence of any evidence of a pistol whipping or multiple kicks to the head which are indicative of an arrest.

In contrast, Justice Scalia's concurring opinion (spare me, you Scalia haters) spells it out straight. 

The Court of Appeals’ mistake, echoed by the dissent, was to replace that straightforward, binary inquiry with open-ended balancing. Weighing the equities—Bailey "posed a risk of harm to the officers," his detention "was not unreasonably prolonged," and so forth—the Court of Appeals proclaimed the officers’ conduct, "in the circumstances presented, reasonable and prudent."

The Court of Appeals read Summers’ spatial constraint somewhat more promiscuously: In its view, it sufficed that police observed Bailey "in the process of leaving the premises" and detained him "as soon as practicable." 652 F. 3d, at 206 (emphasis deleted); see also post, at 6–7. That has pragmatic appeal; police, the argument runs, should not be precluded from seizing the departing occupant at a distance from the premises if that would be safer than stopping him on the front steps. But it rests on the fallacy that each search warrant entitles the Government to a seizure incident to the execution of a warrant "is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the [seizure] unlawful."

Who doesn't hate a promiscuous reading of spatial constraints?  Throwing its editorial heft behind the decision, the Times stated:

But the Supreme Court rejected that ruling, noting that distance from the scene matters. Detentions made away from the place being searched “resemble a full-fledged arrest,” Justice Anthony Kennedy wrote in the majority opinion.

Resemble?  As in "she has her mother's eyes" resemble?  That the majority even goes there is disturbing, even though it ultimately reaches the right result. 

The flavors of seizure of a person have come to rival Baskin-Robbins.  When police seize a person, who is then not free to exercise his constitutional right to walk away, he is arrested. When the slap on cuffs and unceremoniously put him in the back seat of their cruiser. he's arrested.  Even if they don't smack him around in the process, he's arrested. How did we reach the point where police can do as they please with a human being's body and it's something shy of an arrest?

The answer is unfortunately simple: when you humpty-dumpty the characterization enough, concepts that demand to be clear, such as arrest, fall into the beloved rhetorical black hole of "reasonableness."  Mangle the details a bit and throw in a few pointed adjectives, especially from the perspective of the police, and pretty soon everything sounds fairly reasonable. And obvious reasonable is better than unreasonable, right?

Well, not according to Scalia, who cuts through the malarkey to get at the only real point raised by the case, and yet somehow not factored into the ruling except by his co-concurrers, Justices Ginsburg and Kagan.  The test isn't wiggly line, subject to balancing and the rhetoric of reasonableness.  It's a search warrant.  It's the authorization to search a premises, not to seize people wherever they may be.  That they get to nab people inside the premises, or in the immediate vicinity is a gift, not an entitlement.

Just because Summers gave the cops one free ride doesn't mean they get to ride forever.  Even the Times doesn't seem to grasp that each step on the slippery slope doesn't give create a new government entitlement, only to be extended at every opportunity.

Bailey would have seemed to be one of the most straightforward suppression cases possible, his being arrested a mile away from the search, and yet it took a split Supreme Court to figure out that it was a bust too far.  Even so, six justices fail to appreciate that sometimes the government just can't do anything it pleases even if they use the word "reasonable" enough.  Sometimes, a line has to be drawn.

While it's not exactly clear where that line is drawn, at least we now know that a mile is beyond it. Duh.

 

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