Searches and seizures

As the U.S. Supreme Court nears the end of its term, several major decisions remain, not the least of which is ObamaCare. But as the justices wrap up their rulings, they are also finalizing their schedule for the fall.

This week, the high court agreed to hear an appeal from Chunon Bailey, who was sentenced to 30 years in prison on drug and weapons charges. In Bailey v. United States, the Supreme Court will decide whether police can follow and detain a suspect while they wait for a search warrant.

Bailey left his Wyandanch, N.Y., apartment in July 2005 not knowing that police were near the premises awaiting a search warrant. An unmarked police car followed Bailey for more than a mile, and police then detained him and brought him back to the building. When the warrant arrived, police found drugs and weapons and arrested Bailey.

The trial judge ruled that if police could detain someone who was leaving a place during a search, then police could also follow someone who has left such a place and bring him back. The 2nd U.S. Circuit Court of Appeals refused to throw out Bailey’s conviction, though other federal appeals courts have ruled that police cannot follow and detain people just to bring them back to a place that has not yet been searched.

Bailey may indeed be a bad guy, but the government has a high standard to meet to justify holding those who have not yet been charged. The individual rights set in stone in the Bill of Rights are paramount. Government exists to protect those rights, not to find ever new and better ways to cut corners.

The courts have ruled that police may legally take necessary steps to exercise command of a search scene. But in this case, Bailey was unaware of what was about to occur, so there was no reason to believe he was a flight risk if evidence was found. And given Bailey’s absence, he posed no threat to police and was no impediment to the search.

Affirming the appeals court “would give officers authority to act in anticipation of the execution of a warrant comparable to making an arrest without having to meet the requirements of an arrest,” Bailey’s attorneys argue. This would erode ordinary Fourth Amendment standards “by obliterating the need for an individualized justification for detention.”

Let’s hope the justices halt the ongoing “splitting of the difference” designed to erode the Fourth Amendment in order to make things more convenient for law enforcement in matters of search and seizure.