Bailey v. United States: Another Win for That 'Doggone Fourth Amendment'

2012-2013 Cato Supreme Court Review, pp. 187-214 (2013)

Harvard Public Law Working Paper No. 13-40

28 Pages Posted: 17 Sep 2013 Last revised: 1 Nov 2013

See all articles by Daniel Epps

Daniel Epps

Washington University in St. Louis - School of Law

Date Written: September 17, 2013

Abstract

In Michigan v. Summers, the Supreme Court established a bright-line rule that police, when executing a search warrant for contraband at a home, may detain occupants of the residence for the duration of the search. That rule is a categorical exception to the Fourth Amendment’s general prohibition on detentions that are not based on probable cause. This year, in Bailey v. United States, the Court refused to extend the Summers rule further, holding that police have no categorical power to detain occupants who have left the immediate vicinity of the premises being searched.

Bailey got the bottom-line result right. The probable-cause requirement is a well-established component of the reasonableness mandated by the Fourth Amendment. The government could point to no legitimate interest that would justify a limited exception from that requirement without swallowing it entirely. Yet Bailey is in one sense disappointing: Both the majority and Justice Antonin Scalia (who filed a separate concurrence) declined to criticize the Summers rule itself, which is broader than necessary in light of its legitimate justifications — even though both appeared to recognize the flaws in Summers’ reasoning.

More important, however, is what Bailey demonstrates about the current state of search-and seizure doctrine as a whole. The Court has in recent years become more careful in its analysis of Fourth Amendment issues, requiring a tighter fit between exceptions to rules like the probable-cause requirement and their justifications. It now takes the Fourth Amendment more seriously as a source of determinate legal rules, rather than as an open-ended invitation to declare what is reasonable under all the circumstances of each case. Those who believe that the Fourth Amendment should impose meaningful constraints on police action should see that as a good development. It guards against the risk that judges will effectively render Fourth Amendment protections meaningless by discarding them whenever they become inconvenient for police.

Keywords: Fourth Amendment, Bailey v. United States, Michigan v. Summers, criminal procedure, Supreme Court

Suggested Citation

Epps, Daniel, Bailey v. United States: Another Win for That 'Doggone Fourth Amendment' (September 17, 2013). 2012-2013 Cato Supreme Court Review, pp. 187-214 (2013); Harvard Public Law Working Paper No. 13-40. Available at SSRN: https://ssrn.com/abstract=2327105

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 573
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

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