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United States v. Bailey

United States Court of Appeals, Second Circuit

February 21, 2014

CHUNON L. BAILEY, A/K/A POLO, Defendant-Appellant

Argued June 19, 2013.

As Corrected February 28, 2014.

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On remand from the Supreme Court, see Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), this court reconsiders defendant's Fourth Amendment challenge to a conviction based in part on evidence obtained when he was stopped by police about a mile from a residence that he had just departed and that was about to be searched pursuant to a judicial warrant. The Supreme Court ruled that such a detention was not incident to the authorized search so as to be reasonable pursuant to Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), even without individualized probable cause or reasonable suspicion. But it left this court to decide on remand whether the detention was a reasonable investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We now conclude that defendant's initial detention was reasonable under Terry, but ceased to be so when he was placed in handcuffs. Accordingly, while evidence obtained from defendant before handcuffing was lawfully obtained under Terry, evidence obtained thereafter was not. Nevertheless, we conclude that no vacatur for retrial is required because admission of the tainted evidence at trial was harmless beyond a reasonable doubt.


KANNON K. SHANMUGAM (Kristin A. Feeley, Williams & Connolly LLP, Washington, D.C.; Susan V. Tipograph, New York, New York, on the brief), Williams & Connolly LLP, Washington, D.C., for Defendant-Appellant.

CHARLES P. KELLY (Peter A. Norling, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.

Before: CABRANES, POOLER, and RAGGI, Circuit Judges. Judge Pooler concurs in part and dissents in part in a separate opinion.


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Reena Raggi, Circuit Judge :

This case comes before us on remand from the Supreme Court. See Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013). Defendant Chunon L. Bailey was convicted on August 23, 2007, after a jury trial in the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge ), of (1) possession of five grams or more of cocaine base with intent to distribute, (2) possession of a firearm in furtherance of a drug trafficking crime, and (3) possession of the same firearm as a convicted felon. See 18 U.S.C. § § 922(g)(1), 924(c)(1)(A)(i); 21 U.S.C. § § 841(a)(1), 841(b)(1)(B)(iii). Bailey appealed his conviction on the ground that it was secured through inadmissible evidence obtained from him in the course of a constitutionally unreasonable detention. See U.S. Const., amend. IV. The district court had declined to suppress the evidence at issue, concluding that Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) ( recognizing detentions incident to authorized searches as reasonable), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ( recognizing investigatory stops based on reasonable suspicion as reasonable), each independently defeated Bailey's Fourth Amendment challenge. See United States v. Bailey (" Bailey I" ), 468 F.Supp.2d 373 (E.D.N.Y. 2006). In affirming, this court found it sufficient to rely on Michigan v. Summers without deciding whether Terry v. Ohio would also support affirmance. See United States v. Bailey (" Bailey II" ), 652 F.3d 197, 207 n.7 (2d Cir. 2011). The Supreme Court reversed, holding that Summers's detention-incident-to-search rule did not apply to this case because Bailey was not in " the immediate vicinity of the premises to be searched" when he was stopped. Bailey v. United States (" Bailey III" ), 133 S.Ct. at 1042. The Court nevertheless recognized that Terry's investigatory stop rule might provide an independent basis for detention. Expressing no view on that issue, the Court left it open for further consideration by this court on remand. See id. at 1043.

After further briefing and oral argument, this court now concludes that Terry v. Ohio independently supported Bailey's initial detention and patdown, but that his subsequent handcuffing exceeded the scope of a reasonable Terry stop in the circumstances of this case. Accordingly, while evidence obtained from Bailey before handcuffing--inculpatory statements, a driver's license, and a set of keys--was lawfully obtained and admissible at trial, exculpatory statements made by Bailey after handcuffing were not. We nevertheless conclude that no vacatur for retrial is required because admission of the tainted statements was harmless beyond a reasonable doubt.

I. Background

While the facts of this case have been thoroughly detailed in prior opinions, we here reiterate those relevant to our decision today.

A. The Events of July 28, 2005

1. Procurement of a Warrant To Search the Basement Apartment at 103 Lake Drive, Wyandanch, New York

At 8:45 P.M. on July 28, 2005, Suffolk County Police Detective Richard Sneider applied for and obtained a warrant to search the basement apartment at 103 Lake Drive in Wyandanch, New York (" 103 Lake Drive" or " the subject premises" ) for a chrome.380 handgun. Probable cause for the search was provided by a

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known, reliable informant who, in a sworn statement attached to the warrant application, avowed that, days earlier, while at the subject premises purchasing six grams of crack cocaine from " Polo," he had seen a chrome.380 caliber handgun along with drugs on a kitchen counter. The informant reported that he had also seen the gun on other occasions over the preceding two months, during which time he had made seven or eight drug purchases from " Polo" either at the subject premises or at " Polo's" prior residence in Bay Shore, New York. The informant described " Polo" as a dark skinned, heavyset, black male with short hair.

2. Police Stop of Bailey

a. Initial Detention

In anticipation of executing the search warrant at the subject premises, police conducted surveillance outside 103 Lake Drive. At 9:56 p.m., Detective Sneider and his partner, Detective Richard Gorbecki, observed two black males--later identified as Bryant Middleton and defendant Bailey--exiting that location through a gate at the top of stairs leading up from the rear, basement level of the building. Each man was approximately six-feet tall, with a stocky build and short hair. Rather than immediately approach the men--and risk revealing police presence to any persons inside the subject premises, thereby affording them an opportunity to arm themselves or destroy evidence before the authorized search--the detectives watched the men enter a black Lexus parked in the driveway and leave the scene. In an unmarked car, the detectives followed the Lexus for approximately one mile before pulling it over into the parking lot of a fire station in order to " identify" the two men " and to see what their purpose was for being at the residence." Suppression Hr'g Tr. 16:25-17:1, App. 90.[1]

The detectives asked both men to step out of the car and proceeded to pat them down to determine if they were armed. Feeling hard objects in Bailey's front and back pockets, Sneider removed the items to ensure that they were not weapons. The objects were, in fact, a wallet and a set of keys, including keys for the stopped Lexus. The wallet was returned to Bailey; the set of keys was placed on the lid of the car trunk.

The detectives then asked the men their names and from where they were coming. The car's driver identified himself as Chunon Bailey and stated that he was coming from " my house." Id. 56:22-23, App. 122. Asked the location of his house, Bailey replied, " 103 Lake Drive." Id. 56:25, App. 122. In response to a request for identification, Bailey produced a driver's license from his wallet bearing a Bay Shore address. Sneider knew that the informant had said that " Polo" had dealt drugs from his Bay Shore home before moving to 103 Lake Drive.

Meanwhile, Middleton identified himself to Detective Gorbecki and stated that Bailey lived at 103 Lake Drive and was driving Middleton home so that he would be in compliance with a 10:00 p.m. curfew condition of his parole.

b. Post-Handcuffing Detention

At that point, the detectives handcuffed Bailey and Middleton. When Bailey asked why he was being arrested, the detectives told the men that they were not being arrested but were being detained, and that a search warrant was then being executed at 103 Lake Drive. To that, Bailey stated, " I don't live there. Anything you find

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there ain't mine, and I'm not cooperating with your investigation." Bailey III, 133 S.Ct. at 1036.[2]

All four men then returned to 103 Lake Drive: Bailey and Middleton, both handcuffed, in a summoned patrol car; Gorbecki driving the Lexus; and Sneider driving the unmarked police car. Upon their arrival, officers at the scene advised that a gun and drugs had been found in plain view in the basement apartment. Police then formally arrested Bailey and Middleton.

In total, less than ten minutes elapsed between the time officers first pulled over the Lexus and detained its occupants and the arrest. Sometime after Bailey and Middleton were arrested, Detective Sneider confirmed that one of the keys retrieved from Bailey's pocket opened locks to the subject premises.

B. Procedural History

1. Suppression Ruling

On April 6, 2006, a federal grand jury indicted Bailey for the three federal crimes on which he now stands convicted. Through counsel, Bailey moved to suppress all physical evidence and statements obtained from him during his July 28, 2005 detention, arguing that they were the fruits of an unlawful seizure of his person.

After conducting an evidentiary hearing, the district court denied the motion, holding that Bailey's detention, approximately one mile from a residence that he had just left and that was about to be searched pursuant to a warrant, was permissible under Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340. See Bailey I, 468 F.Supp.2d at 382. Further, and as relevant here, the district court held that Bailey's brief detention was independently supported by reasonable suspicion of his criminal conduct and, therefore, lawful under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. See id. Insofar as Bailey argued that his detention became a de facto arrest at least when he was placed in handcuffs, the district court disagreed, holding that such handcuffing was reasonable to assure officers' safety " given that the detectives were searching for a gun at the residence and Bailey came from that residence." Id. at 384. The district court further concluded that transporting Bailey back to his residence in a patrol car did not convert the stop into an arrest. See id. at 385.

2. Trial and Sentencing

The prosecution called four witnesses at Bailey's November 2006 trial. The confidential informant, Raheem Cannaday, testified to purchasing drugs from Bailey in the basement apartment at 103 Lake Drive as well as at a prior residence in Bay Shore, and to seeing a firearm at both locations. Detective Sneider testified about the stop and the match between a key retrieved from Bailey's person and the locks on 103 Lake Drive. Detective Daniel Fischer testified to items seized during the search of the subject premises, including weapons, ammunition, drugs, and various documents in Bailey's name.[3] He also testified

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to the presence of unpacked boxes in the apartment, suggesting that someone had recently moved in. Finally, Middleton, a hostile witness, testified that he knew Bailey by the name " Polo," knew that he previously resided in Bay Shore, had told police that he thought that Bailey had recently moved into the basement apartment at 103 Lake Drive, and had been with Bailey in that apartment on the night of July 28, 2005, before they were stopped by the police.

The defense sought to impugn the prosecution case through cross-examination suggesting that Cannaday was not credible and that the police investigation was deficient. Further, the defense maintained that Bailey did not reside in the basement apartment at 103 Lake Drive and that the guns, drugs, and drug paraphernalia seized therefrom did not belong to him.[4] In support, it called Meltona Sykes, the owner of the house at 103 Lake Drive. She testified that she had rented the basement apartment in June or July 2005 to a black male named Frederick Meyers, whom she thereafter saw coming and going from the apartment. She testified that Bailey did not live in the apartment, but that she recognized him as someone who occasionally visited Meyers there.

In their summations, the parties focused on Bailey's residency at 103 Lake Drive. The prosecution argued that residency could not seriously be disputed in light of the testimony of Cannaday and Middleton, documents seized from the premises bearing Bailey's name, Bailey's initial post-stop admission to residency, and his possession of a key that matched the apartment's locks. Insofar as Bailey denied residency after learning that the apartment was being searched, the prosecution maintained that the statement was false and urged the jury to infer that Bailey made it because he believed he was guilty.

As for Ms. Sykes's testimony that Frederick Meyers resided in the basement apartment and that Bailey was simply an occasional visitor, the prosecution argued that it was not credible, emphasizing the lack of documentary corroboration for Meyers's tenancy and Cannaday's testimony implicating Ms. Sykes and her sister in drug use.

Defense counsel, by contrast, argued not simply that there was reasonable doubt as to who resided in or controlled the subject premises, but that the evidence was " crystal clear" that Bailey did not. Summation Tr. 760:4-10. In support of this conclusion, the defense first highlighted evidentiary gaps in, and credibility concerns with, the prosecution case. It then urged the jury to recognize that Ms. Sykes was the only disinterested, credible witness, and that she unequivocally testified that Bailey was not the tenant or resident of the basement apartment, but only an occasional visitor there. As for Bailey's own statements to the police disavowing residency or ownership of anything in the basement apartment, the defense maintained, " [h]e told them the truth." Id. 769:24-770:1. It submitted that what was suspect was police testimony that Bailey had initially admitted residency. The defense suggested that Bailey had originally told Detective Sneider that " he was coming from 103, not [from] my house," and that the officer had recast that exchange in a more incriminatory light after learning the results of the search. Id. 769:15-770:8. Thus, in its closing point to the jury, the defense argued

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that the jury could " see[] clearly" from the totality of the evidence " that Mr. Bailey did not control this apartment.... [H]e did not possess the items in that apartment." Id. 789:3-6.

After the jury found Bailey guilty on all crimes charged, the district court sentenced him to concurrent prison terms of 300 and 120 months, respectively, for possession with intent to distribute more than five grams of crack cocaine and for being a convicted felon in possession of a firearm, as well as a consecutive prison term of 60 months for possession of a firearm in furtherance of a drug trafficking crime. The court also imposed concurrent terms of 5 years' and 3 years' supervised release and a total special assessment of $300.

3. Section 2255 Petition

On December 5, 2008, Bailey moved pursuant to 28 U.S.C. § 2255 for vacatur of his conviction and a new trial on the ground that trial counsel was constitutionally ineffective in pursuing suppression of evidence ultimately introduced at trial. Specifically, Bailey faulted counsel for failing to offer evidence that access to the basement door at the rear of 103 Lake Drive could be gained from either the basement apartment or the house upstairs. Bailey asserted that such a showing would have established that when Detectives Sneider and Gorbecki observed Bailey exit the gate on July 28, 2005, they could not have known whether he was leaving the basement apartment or the house upstairs. Bailey maintained that a conclusive showing that he had left the basement apartment was necessary to sustain his subsequent detention under either Michigan v. Summers or Terry v. Ohio. See Bailey II, 652 F.3d at 202.

The district court denied Bailey's motion, concluding that, even if counsel had made the urged showing, the detectives would still have had a reasonable basis to think that Bailey and Middleton had emerged from the basement apartment for which they had a search warrant. See United States v. Bailey, No. 06-CR-232 (JFB), 2010 WL 277069, at *11 (E.D.N.Y. Jan. 19, 2010). In reaching this conclusion, the district court referenced " undisputed evidence at the trial that this door to the main house was not accessible to the basement tenant and that the main house was[ ]sealed off from the basement area."

4. Appeal to this Court

Bailey appealed both the final judgment of conviction and the denial of § 2255 relief. In affirming both, this court construed Michigan v. Summers, which permits officers executing a search warrant to detain persons on the premises, see 452 U.S. at 705, to support the detentions in this case because officers could have detained Bailey at 103 Lake Drive, and their " decision to wait until [he] had driven out of view of the house to detain him out of concern for their own safety and to prevent alerting other possible occupants was, in the circumstances presented, reasonable and prudent," Bailey II, 652 F.3d at 206. Accordingly, this court did not consider whether Terry v. Ohio might also have supported the challenged detention.

5. Supreme Court Review

The Supreme Court reversed this court's reliance on Summers to affirm the judgment of conviction. See Bailey III, 133 S.Ct. 1031, 185 L.Ed.2d 19. The Court explained that Summers was a " categorical" rule with a " spatial dimension." Id. at 1040, 1042. In short, a " spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur." Id. at 1042. Thus, a detention incident to search is limited " to the area in which an occupant poses a real threat to the safe and

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efficient execution of a search warrant." Id. Whatever the outer limit of that area, the Supreme Court concluded that Bailey had crossed it when he traveled a mile from the subject premises. See id. (" [T]he decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place." ).

The Supreme Court observed that this did not mean that Bailey's off-site detention was necessarily unlawful. Rather, it meant that the detention's lawfulness was " controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry." Id. Noting that the district court, " as an alternative ruling," had held that Bailey was lawfully stopped under Terry, the Supreme Court " express[ed] no view on that issue," and left the matter for further consideration by this court on remand: " It will be open, on remand, for the Court of Appeals to address the matter and to determine whether, assuming the Terry stop was valid, it yielded information that justified the detention the officers then imposed." Id. at 1043.[5]

We now explain why we conclude that Terry v. Ohio supported Bailey's initial stop, but not the police actions in placing him in handcuffs.

II. Discussion

A. Stops Pursuant to Terry v. Ohio

On remand from the Supreme Court, Bailey maintains that all evidence obtained from him before his formal arrest on July 28, 2005, was the fruit of an unlawful detention, and that Terry v. Ohio, 392 U.S. 1, 88 ...

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