Federal Criminal Lawyer Blog

In a case that criminal defense lawyers here in Atlanta and around the country need to all read, yesterday the United States Supreme Court ruled that the police can take DNA samples from people who are merely arrested for serious crimes, and that the Fourth Amendment to the United States Constitution does not prohibit this practice. The decision can be found here. I predicted in a previous post that this would be a close decision, and it was: 5-4. One major surprise was that Justice Breyer, normally a friend of personal liberties, sided with the majority in ruling that warrantless extraction of DNA samples passes constitutional scrutiny. The dissent was sort of "Nino and the Ladies", with Justice Antonin Scalia being joined by the three female Justices, Sotomayor, Ginsberg and Kagan.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King's DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King's conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.

Justice Anthony Kennedy, writing for the five members in the majority of the court, noted that while taking a DNA sample is a search, the Fourth Amendment bars unreasonable searches. Kennedy said that a "gentle" swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail. Because Maryland's law was restricted to warrantless DNA extraction only when a person is arrested for a "serious" crime, and because the law bars any collection or use of DNA to detect private genetic information, the majority found that DNA collection is a legitimate booking procedure.

In dissent, Justice Scalia, a staunch conservative, issued a rare oral dissent from the bench. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside "a bedrock rule of Fourth Amendment law." "Make no mistake about it," he warned. "Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

This is a classic example of a "slippery slope", or the "camel with his nose in the tent." in other words, once a process begins, it is very difficult, if not impossible, to stop it. I tend to agree with Justice Scalia that this is just the beginning of the creation of a national database where all of our DNA will be held, compared, used and possibly mis-used. This case reminds me why all criminal defense lawyers need to fight ceaselessly for the rights of our client, for when they can do such things to "criminals", it is only a short step before they doe these things to the rest of us.

Criminal defense lawyers here in Atlanta, throughout Georgia and the rest of the Nation, whether in federal court or state court, all need to be aware of developments in the law, especially such hot topic areas like search and seizure. Many attorneys are able to either win, or at least put their client's case in a better posture, by pointing out that the investigating officials either did or came close to going over the Constitutional line when obtaining incriminating evidence. I've written in earlier posts about how more and more courts are grappling with search and seizure rules when applying modern technology to the Fourth Amendment, the rule created by the Founders of our country in the 18th century.

Another of these rulings came out the other day, and was issued by the United States Court of Appeals for the First Circuit. That case held that when the police arrest a person, they generally cannot look through the person's cell phone unless they first get a warrant. The First Circuit case applies to federal criminal matters that arise in Maine, New Hampshire, Massachusetts and Puerto Rico. An earlier ruling by the Seventh Circuit (which is governing authority in federal cases in Illinois, indiana and Wisconsin) came to a different result, holding that no warrant is needed. Look to see this issue going up the the United States Supreme Court at some point in the not too distant future.

In the First Circuit case, the police had probable cause to arrest the Defendant for being involved in a suspected drug deal. They then got his phone out of his pocket, and by pushing a couple of buttons, they then got information as to his home address. They went to the residence, put officers inside to make sure his wife did not destroy anything, and then got a warrant to search the house. In the house they found lots of drugs and a weapon, leading to the Defendant's ultimate 22-year prison sentence. He appealed, arguing that the search of his phone was illegal, and that illegality led to the identification of his house and search there. The First Circuit agreed and reversed his conviction.

The Fourth Amendment says that there shall not be any search unless based on probable cause and after a judge has issued a warrant. We all know that this rule is riddled with holes like Swiss cheese. One such hole is the "search incident to arrest" exception to the Fourth Amendment. This rule says that potential danger to the police and the need to look for evidence before it can be destroyed are reasons why law enforcement officials are permitted to engage in a warrantless search of the arrested person, his belongings and anything he has near him. The cases say that the cops can look through wallets, purses, and the like, but cannot get into boxes or vehicles that are some distance away from the arrested person.

Enter the modern cell phone, which is no bigger than wallets and purses, and oftentimes much smaller. However, more and more courts are recognizing that size ain't everything, for as we all know, our cell phones are often repositories of extraordinary amounts of information, much of which is highly confidential and personal. The prosecutors in the First Circuit case argued that a cell phone is no bigger than a wallet, and the same search rules should therefore apply. However, the First Circuit noted that the "eighty-five percent of Americans who own cell phones and who use the devices to do much more than make phone calls" would probably be surprised to know that their government equated these technological marvels with a wallet. The First Circuit instead recognized that cell phones are actually compact computers, with vast storage capability, and that most folks keep an array of private information on these devices. As a result, the court said that the wallet analogy does not work. If the police want to look through the cell phone of an arrested person, they need to get a warrant.

Now, a caveat. The First Circuit sits in Boston, where the Marathon bombing still is causing shockwaves throughout the community. The First Circuit therefore noted that its ruling did not apply to "exigent circumstances" cases, which are situations in which an emergency situation requires immediate law enforcement action with no need to first get a warrant from a judge. "We assume that the exigent circumstances exception would allow the police to conduct an immediate, warrantless search of a cell phone's data where they have probable cause to believe that the phone contains evidence of
a crime, as well as a compelling need to act quickly that makes it impracticable for them to obtain a warrant -- for example, where the phone is believed to contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or incident."

This is an important case. We will keep track of further developments, so we can use this and other recent cases to help clients we represent.

We occasionally handle cases in Florida, and since I am also licensed in the Sunshine State we pay attention to legal issues happening there. As readers of this Blog realize, I have a fascination with how the law is developing in the intersection between modern technology and the Eighteenth Century rules enshrined in our Fourth Amendment, and have written on such issues, such as in this post. Two weeks ago me and my law partner Carl had a big oral argument in front of a federal judge concerning such issues, so this area of the law is on my mind currently.

The Florida Supreme Court issued what could be a very important decision last week, Smallwood v. Florida. In that case, a police officer arrested Mr. Smallwood for an armed robbery that happened the previous day. The robber had taken currency from a local store. After the arrest, the police officer opened up Smallwood's smartphone, looking through his pictures. Like too many foolish criminals, Mr. Smallwood had apparently taken pictures so he could brag about his crime, photos that showed the gun, the money, and his girlfriend all in proximity to the loot. The defense attorney argued that Mr. Smallwood, like all of us, had an expectation of privacy in the contents of his cell phone, and that a search without a warrant was therefore unreasonable and illegal. The trial court and intermediate appellate judges sided with the prosecution, ruling that the older Supreme Court cases on searches incident to an arrest justified the officer's actions. One of these older cases was issued in 1973, United States v. Robinson. In that case, the U.S. Supreme Court said it was OK for the arresting officer to look through a package of cigarettes in the Defendant's pocket after the arrest, a peek which led to the discovery of heroin.

Last week the Florida Supreme Court reversed the lower courts, holding that the police cannot plow through an arrested person's cell phone without a warrant. "Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone."

Modern technology is wonderful. I can have a videophone call with my son when we are on opposite sides of the world. However, this same wonderful technology allows the government to learn the most intimate details of our lives once our cell phones, computers and online accounts are accessed. I salute the Florida Supreme Court for protecting individual rights, while still acknowledging that the police can get such private information, they simply need to do what the authors of our Constitution told them to do: GET A WARRANT!

Hallelujiah! The Supreme Court yesterday continued its recent string of protecting all of our rights by reinvigorating the reach of the Fourth Amendment's requirement that police need a search warrant to get incriminating evidence from a suspect. Yesterday's case involved the forcible removal of blood from a drunk driving suspect. By an 8-1 margin the Court held that getting the blood without a warrant violated the Fourth Amendment. The case is Missouri v. McNeely.

In the early-morning hours of Oct. 3, 2010, Missouri State Highway Patrol Cpl. Mark Winder pulled over Tyler G. McNeely. McNeely, whose speech was slurred and who had alcohol on his breath, failed a field sobriety test and twice refused to take a breath test.
Winder arrested McNeely. While en route to the jail, the officer stopped by a hospital. McNeely refused to submit to a blood test. Officer Winder then ordered a technician to draw blood anyway. The officer later said he did not try and get a warrant because he thought Missouri law did not require it.

The Missouri Supreme Court unanimously disagreed and said the blood test could not be used. Courts nationwide were divided on the issue, which led the U.S. Supreme Court to take the case, and ultimately issue yesterday's ruling.

The prosecution argued that the natural dissipation of alcohol in a person's bloodstream was the reason the Supreme Court should create yet one more exception to the Fourth Amendment's rather clear mandate that there shall be no search or seizure unless based on a probable cause determination resulting in a warrant. Writing for herself and four other members of the majority, Justice Sotomayor rejected this argument. She said such emergencies must be determined by the circumstances in a case-by-case examination and rejected the notion that officers face a “now or never” situation in obtaining blood alcohol tests. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” Sotomayor wrote.

Chief Justice John G. Roberts Jr. agreed with the outcome of the case,but criticized the vagueness of the majority’s test. “If there is time to secure a warrant before blood can be drawn, the police must seek one,” Roberts wrote. “If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.”

I have written posts here and here about the seeming resurgence in the Supreme Court's inclination to protect individual liberties against over-intrusive police practices. We hope this trend continues, for it is perfectly reasonable to have effective law enforcement alongside a robust respect for personal liberty and freedom.

In a earlier posts, I wrote about the Supreme Court's "dog sniff" cases, the former in which the Defendant was stopped while driving his truck and a drug dog eventually alerted to the presence of dogs, the latter case where (based on a "tip") the police walked a drug detector dog on the Defendant's porch, the pooch alerted, and based on that they got a warrant to search the house. As I predicted, the Supreme Court affirmed the search of the truck, and yesterday, they sided with the homeowner in the sniff that took place on the porch of the home. Yesterday's case is Florida v. Jardines, and by a 5-4 margin the Court held that the sniff on the porch was illegal as being a search not done pursuant to a warrant.

The opinion resulted in a somewhat unusual alignment of justices. Justice Scalia, perhaps the Court's most conservative member, wrote the majority decision. He was joined by Justice Clarence Thomas, a frequent ally, and three of the court’s more liberal members, Justices Ginsburg, Sotomayor and Kagan.

Justice Scalia said the Fourth Amendment, which prohibits unreasonable searches, is particularly concerned with the home and its immediate surroundings. When a dog on a leash roams around the outside of a residence, this is a tremendously different intrusion than visits from Halloween trick-or-treaters. “To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”

Justice Scalia grounded his opinion in property rights. This is the same theory he espoused when he wrote the opinion last year in Jones v. United States, the now-famous GPS case where a unanimous Court overturned years of practice by holding that placing a GPS monitor on the underside of a suspect's vehicle is a "search" that must be supported by a warrant.

In yesterday's case, Justice Kagan wrote a concurring opinion, joined by Justices Ginsburg and Sotomayor. They would also have relied on the "usual" rationale that looks to a person's "reasonable expectation of privacy." This seems to set up future battles, as noted by Justice Sotomayor's spirited concurrence in the GPS case where she wrote: "[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. ...This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. ... I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Again, we watch these cases closely, not only to help our clients, but also to predict future cases. Stay tuned!

Here we go again, the intersection of the Eighteenth Century concept of privacy enshrined in our Fourth Amendment (no searches or seizures except when done pursuant to a warrant based on probable cause) versus the modern "CSI" world where investigators take biological shards to solve the most difficult of crimes. Today, the Supreme Court hears arguments in Marlyand v. King.

Most of the states along with the federal government have laws that provide for automatic DNA collection from people at the time of their arrest. The King case argued today asks the question whether it is unconstitutional to do that without a warrant, for the sole purpose of checking the DNA against a national DNA crime scene database.

Earlier cases all decided that that police can conduct such tests once an individual is convicted. (It's true, your Blogger lost one of these early cases, back in 2006). The King case asks whether the same is true for people arrested but not yet tried or convicted.

Here's what happened. The police arrested Mr. King in on assault charges. Using state law, they swabbed King's cheek to get a DNA sample, and then submitted the sample to the federal DNA database to see if there were any matches. The database eventually matched King's DNA to biological material from a rape six years earlier. The prosecutors used the DNA match against Mr. King, who was convicted and sentenced to life in prison for the rape.

The Maryland Court of Appeals threw out King's conviction. The state court noted that King was presumed innocent at the time of the initial arrest and that his DNA was not taken to prove that charge. The Maryland court held that the DNA collection was nothing more than a state fishing expedition for anything prosecutors could catch.

Again, this is a never-ending debate, encompassing the tension between personal privacy and the desires of Twenty-First Century crime fighters. We tend to forget that these cases almost always arise in the context of a seemingly guilty person's appeal of a horrible crime. However, if they can take DNA from a "bad" person, they can do the same thing to a "good" citizen who is falsely arrested. It does not take a lot of imagination to come up with scenarios where DNA can later be used against this "good" person, and if Mr. King loses this case, that will almost certainly happen.

The Supreme Court today issued one of the two dog cases on its docket, Florida v. Harris. Recall that we blogged on this case when it was accepted for review. In today's unanimous ruling, the Supreme Court held that just because there are no performance records for how a dog does in the field, this by itself does not mean that a dog's positive alert cannot form the basis for a probable cause search.

The pooch in this case is "Aldo." His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo "alerted", but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.

Mr. Harris moved to suppress the results of the first search, arguing that the dog alert was insufficient so as to allow a warrantless search of the truck's interior. The prosecution presented evidence about Aldo's extensive training in sniffing out illegal substances. Defense counsel did not challenge this evidence, but instead focused on the lack of any field performance records, along with the fact that Aldo had obviously given two false positives when alerting at the exterior of Mr. Harris's truck. The Florida Supreme Court agreed with the defense, noting that the lack of performance records for the dog's earlier work demonstrated that an alert from this animal was simply insufficient evidence to form the basis for probable cause.

Justice Kagan wrote for the unanimous Supreme Court. She noted that the Florida Supreme Court created a rule with specific requirements for establishing probable cause in dog alert cases, and that such specificity is the antithesis of the flexible totality-of-the-circumstances approach in such matters. Courts should not require that the prosecution introduce comprehensive documentation of the dog’s prior hits and misses in the field. The Court noted that looking at field-performance records as the evidentiary gold standard is erroneous. Such records may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. While field records may sometimes be relevant, the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.

This case was not a huge surprise. Courts have for years been calling drug dogs "four-legged probable cause." Also, for many years the Supreme Court has rejected any specific rules in the probable cause analysis other than the "totality of the circumstances" test, which, obviously, puts a whole lot of power in the hands of the first judge who looks at a case.

While most of our federal white collar criminal cases do not involve drug detection dogs, I noted last week in this post that the Supreme Court will soon hear arguments in a case to decide whether an "alert" on a motor vehicle by a drug-detecting dog is enough to let the police then search the car. In "Going to the Dogs: Part 2", the Supreme Court comes at the same issue from a different context: the pooch is on the porch of a home. The case is Florida v. Jardines, and it will be argued on Halloween Day.

Here is what happened in the lower courts. Miami police got a tip that Mr. Jardines was growing marijuana in his house. Based on that tip, a dog handler took the certified drug detecting dog (named "Franky") to the door of Jardine's house. Franky indicated that he had smelled drugs, and a detective then went to the door, where he too smelled marijuana. The police got a warrant, and found several live marijuana plants growing inside.

Jardines moved to suppress the drugs, arguing that the dog sniff at his door violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The Florida Supreme Court agreed, holding that the dog sniff was a “search” that itself required a warrant. It was very important to the ruling by the Florida Supreme Court that the sniff took place at the front door of a house, because such activity invades the sanctity of the home, which generally gets more protection under the Fourth Amendment.

The State of Florida convinced the U.S. Supreme Court to review the case. The prosecution relied on several earlier Supreme Court cases holding that dog sniffs in other contexts are not searches. For example, the Supreme Court previously held that a sniff of a car or luggage in an airport is not a search because the sniff merely uses the circulating air to indicate whether drugs are present. Because here the dog merely signaled that he smelled drugs in Jardines’ house, the prosecution contends that this case is more like the other dog sniff cases. The State of Florida also noted that the Florida Supreme Court decision conflicts with the rulings by two federal appellate courts, each of which held that a dog sniff of a residence is not a search.

Mr. Jardines is relying significantly on Kyllo v. United States, as did the Florida Supreme Court. In Kyllo, the Court held that the warrantless use of an infrared device to detect a marijuana-growing operation in a house was unconstitutional because the device could reveal otherwise private information about legal activities within the home.

As mentioned earlier, dog searches only come up in a fraction of our cases, but constitutional principles are always important. We are always interested in cases where the Court is called on to protect the sanctity of a person's home, so we will watch this matter closely.

Here in Atlanta, in both federal court and in state court criminal cases, we regularly see situations where the police stop a person's vehicle, and walk a drug detecting dog around the car. If the dog "alerts", the police contend they have sufficient grounds, or "probable cause", to search the vehicle. I am currently litigating just such a case in the Georgia Court of Appeals, but the issue turns on whether they had the right to keep the driver at the side of the road long enough so as to let the dog do his thing. This term, the United States Supreme Court will confront a case out of Florida that presents a clear question: whether the police may conduct a warrantless search for drugs based solely on an alert by a drug-sniffing dog without any other evidence of the dog’s reliability so long as the dog has been “trained” or “certified.” The case if Florida v. Harris, and it will be argued in a few weeks.

Here's how the case got to the Supreme Court. In rural Liberty County, a sheriff’s deputy was on patrol with his trusty drug-detecting dog named Aldo. The dog had been trained to detect the illegal drug methamphetamine. The deputy pulled over Clayton Harris, because his truck's license plate had expired. The officer noticed that Harris was shaking badly, and was breathing rapidly — telltale signs, for the officer, that Harris might be on drugs. The officer wanted to search the truck, but Harris refused. The officer then had the dog walk around the truck, and the animal “alerted” to a drug on the door handle of the driver’s side of the truck. With that “alert” as legal justification, the officer searched the interior of the truck’s cab, and found ingredients for making methamphetamine.

Harris was charged with possessing materials for making meth. His very able public defenders argued that the search of the truck’s interior violated the Fourth Amendment because the deputy had no legal basis for conducting such a search. The Florida Supreme Court subsequently agreed, concluding that Aldo’s “alert” to a substance on the truck door handle was not sufficient to justify searching the cab. The state Supreme Court said that an "alert" is not enough by itself to satisfy a court that the dog is properly trained and certified for the detection of a specific illegal drug. Instead, the highest court in Florida held that an “alert” can provide the basis for a search only if the evidence shows how the particular dog was trained, what was done to satisfy an expert that the dog was adequately trained, how the dog had actually performed in “alerting” to drugs in other situations, and how well trained and how experienced was the dog’s police handler.

Florida, most of the various states, and the federal government, are all asking that the U.S. Supreme Court reverse the decision by the Florida Supreme Court. They want a ruling that the fact that a trained and certified dog does make an “alert” should be enough, all by itself, to justify a police officer’s further search of a vehicle for illegal drugs.

Frankly, it appears that the Florida Supreme Court's ruling stands alone. Most states, and virtually all federal courts, hold that an alert by a drug dog is sufficient for searching a vehicle. Some folks in law enforcement call the detector dogs "four-legged probable cause." While we will watch the case closely, it will be a surprise if the U.S. Supreme Court says that anything more is required for a search in this context.

Well it's early October, a beautiful time of year here in Atlanta, and also the time when the United States Supreme Court kicks off its new "term." There are a couple of cases of interest that the Supreme Court will decide in the upcoming term. I will focus on cases that impact our federal and state criminal matters. We will start with one case today, and look at the others in subsequent posts.

First, we have Bailey v. United States. This is an old-fashioned Fourth Amendment appeal, arising out of the execution of a search warrant. Thirty-one years ago, the Supreme Court issued a decision called Michigan v. Summers. In that case, the Supreme Court decided that officers executing a search warrant for contraband may detain the occupants of the premises while the search is conducted. In the past three decades, a substantial conflict has developed among federal courts of appeals and state courts of last resort on the question of whether the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises before the warrant is executed. The Supreme Court will hear the Bailey case to clear up this conflict among the lower courts.

Here is what happened in Bailey. Police officers had a warrant for an apartment. They were staking it out before executing the warrant, and noticed two men leaving the apartment. They followed Mr. Bailey from the apartment to be searched and detained him approximately one mile away. During the detention, the officers discovered a key to the apartment on Bailey’s person, and he made statements linking himself to the apartment. In the course of the search back at the apartment, officers found guns and drugs, and Bailey was later charged with various federal offenses. The federal district court denied Bailey’s motion to suppress the fruits of his detention, and the key was the main evidence used at trial to support the prosecution's theory that Bailey owned the guns and drugs in the apartment. Bailey was convicted, and on appeal he again argued that the police violated the Fourth Amendment when they stopped him many blocks away from the apartment. The Court of Appeals sided with the Government. After recognizing the conflict among the various courts during the past three decades, the Court of Appeals held that the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises. Bailey thereafter asked the Supreme Court to review the case, and in late September they agreed to do so.

Back when it first decided Summers, the Supreme Court reasoned that detaining a person on the scene who is present while the individual’s own home is being searched is not a whole lot more more intrusive than the search itself. The Court further reasoned that three rationales supported a rule allowing the police to detain a person present while a warrant is being executed: (1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk of harm to the officers; and (3) facilitating the orderly completion of the search. In Bailey, however, the person was far from the house, and the police had not even started executing the warrant, so it would be difficult to argue he might flee from an event that had not yet happened. The "risk of harm" rationale likewise seems weak, in that the safer course would be to let him go away and not be a potential problem. Additionally, taking police away from the scene to follow Bailey seemed to impede, not facilitate, the search.

As we all know, the Supreme Court in the past 40 years has not been kind to our joint rights that are supposedly protected by the Fourth Amendment's prohibition against unreasonable searches and seizures. Many people get confused, thinking that we are only fighting for people like Mr. Bailey, who after all, had drugs and guns inside his house they they executed a warrant. However, if they can follow and detain Bailey, they can do the same to you and me just because we are present at a place where someone else has done something that causes the police to get search warrants. We will follow this case closely to see if the Supreme Court will protect our joint rights.