Imagine that the police have a warrant to search a house. Could they detain you -- in handcuffs -- just because you happen to be driving away from that house before the search?

That's the issue in Bailey v. United States, which the Supreme Court will hear Thursday. (The case was originally scheduled for Tuesday, but umpire-in-Chief John Roberts declared a rainout due to Hurricane Sandy.)

Though the situation in Bailey is relatively rare, the way the Court decides the case could reveal a lot about the future of Fourth Amendment jurisprudence.

The case arose, like so many Fourth Amendment cases do these days, out of a narcotics investigation. Police got a tip that someone nicknamed "Polo" was selling drugs out of the basement apartment of a house in Islip, New York.

Officers showed up at the house; after obtaining a search warrant, but before they began the search, the officers saw two men -- both of whom matched the tipster's fairly vague description of "Polo" -- walk out of the house and drive away. The police pulled the car over a little less than a mile from the house and placed both men in handcuffs.

Chunon Bailey, one of the two men detained, was prosecuted on federal drug and gun charges based on what was found at the apartment. Some of the government's evidence that Bailey lived there was acquired after he was detained. Bailey argued that his detention violated the Fourth Amendment's prohibition of "unreasonable ... seizures," and that as a result the evidence couldn't be used against him at trial.

The lower courts upheld the seizure, relying on a 1981 case, Michigan v. Summers. There, the Court said that the police can detain someone they find at a house when executing a search warrant. Usually, the Fourth Amendment's ban on unreasonable seizures means that the police can't detain you unless they have probable cause to think you've committed a crime. In Summers, the Court identified several law enforcement needs justifying an exception to that general rule: preventing an occupant from fleeing to avoid arrest, minimizing the risk of harm to police, avoiding the destruction of evidence, and facilitating "the orderly completion of the search." (The idea is that the detained occupant might assist police in opening locked doors and containers.)

Since Summers, the Court has made clear that, when the police detain you at the scene of a search, they can use "reasonable force" -- that is, they can keep you in handcuffs for as long as the search lasts, which can be several hours. But the Court hasn't clarified whether the detention power covers situations where the person actually leaves the premises. As a result, some lower courts, like those in Bailey's case, have upheld such detentions; others have concluded they violate the Fourth Amendment. The Supreme Court took the Bailey case to settle that disagreement.

    The justices can be placed on a spectrum in terms of the way they handle Fourth Amendment cases. At one end is Justice Scalia. At the other is Justice Alito.

The briefing in the case is top-notch. As you might expect, the parties spend a lot of time arguing over whether the interests that form the basis of Summers justify seizures of departing occupants. The briefing also reveals interesting strategic choices. Bailey pins his hopes on a 2009 decision, Arizona v. Gant, which addressed whether police can search a car after arresting and handcuffing the driver. In a 5-4 decision, the Court essentially overruled an earlier case and held that such searches were generally impermissible, concluding that the purported justifications -- ensuring police safety and preserving evidence -- simply didn't apply when the arrestee was handcuffed in the back of a squadcar.

Gant isn't directly on point as a legal matter, as it was about searches, not seizures. But Bailey nonetheless makes the case the centerpiece of his argument, in the hope that the Court will see it as analogous and similarly conclude that the purported law enforcement interests don't justify allowing police to seize departing occupants.

The government chooses not to engage with Gant at all; it never cites the case, presumably to send the message that Gant just isn't on point. Whether that was a savvy tactical move or a dangerous miscalculation should become clear at the oral argument.

The actual Bailey situation is relatively rare, and is one that most law-abiding people are unlikely to encounter. (Mistakes do happen, as evidenced by a 2006 case in which the police held a naked homeowner and his girlfriend at gunpoint in their bedroom until officers realized they had the wrong house. Relying on Summers, the Court found the police acted reasonably.)

But the case may expose Fourth Amendment fault lines that don't track typical liberal/conservative divides. The justices can be placed on a spectrum in terms of the way they handle Fourth Amendment cases. At one end is Justice Scalia, who is eager to rethink Fourth Amendment precedents when they don't square with his understanding of the Amendment's historical purposes. At the other end of the spectrum is Justice Alito, who is generally more concerned with precedent than with original understanding, takes a more forward-looking and pragmatic approach, and is more willing to defer to law enforcement interests.

The contrast between Scalia and Alito has been evident in several recent Fourth Amendment cases. In Gant, the majority followed a course Justice Scalia had charted in an earlier separate opinion, while Justice Alito wrote the principal dissent. So, too, with last term's Fourth Amendment tempest-in-a-teapot, United States v. Jones. The issue in that case was whether placing a GPS tracker on a car constituted a "search" under the Fourth Amendment. All the justices said yes, but they got there in different ways. Justice Scalia's majority opinion looked to the 18th century, concluding that the framers would have thought that the GPS installation was a search because it involved a common-law trespass.

Justice Alito wrote separately, arguing that the Court should stick to the analytical framework developed by 20th-century cases, and openly questioning whether it made any sense to look for historical analogs to GPS technology. "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?" Answering his own question, Justice Alito wryly noted that "this would have required either a gigantic coach, a very tiny constable, or both."

Unsurprisingly, Bailey's opening brief is a love letter to Justice Scalia, repeatedly citing one of Scalia's important concurrences and concluding with several pages of argument about the 18th-century background of the Fourth Amendment. The government, for its part, focuses on the practical justifications for allowing seizures like Bailey's. Which strategy prevails should tell us something about just how interested Justice Scalia is in rethinking Fourth Amendment law in his remaining years on the Court -- and whether his school of thought or Justice Alito's has the greater allegiance among the Court's members.

Bailey should also give us a better read on how the Court's newest Justices -- Sonia Sotomayor and Elena Kagan -- will approach Fourth Amendment cases in the future. Early returns are uncertain. In Jones -- the GPS case -- Justice Kagan signed on with Justice Alito, whereas Justice Sotomayor seemed not to want to pick sides; she joined Justice Scalia's majority opinion but then wrote a separate opinion in which she indicated possible agreement with Justice Alito.

The outcome in Bailey won't revolutionize law enforcement procedures. But anyone who cares about the Fourth Amendment should nonetheless pay close attention.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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