United States v. Bailey, Docket Nos. 07–3719(L), 10–398(CON).

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: REENA RAGGI
• Citation: 743 F.3d 322
• Parties: UNITED STATES of America, Appellee, v. Chunon L. BAILEY, a/k/a Polo, Defendant–Appellant.
• Docket Number: Docket Nos. 07–3719(L), 10–398(CON).
• Decision Date: 21 February 2014

743 F.3d 322

UNITED STATES of America, Appellee,
v.
Chunon L. BAILEY, a/k/a Polo, Defendant–Appellant.

Docket Nos. 07–3719(L), 10–398(CON).

United States Court of Appeals,
Second Circuit.

Argued: June 19, 2013.
Decided: Feb. 21, 2014.

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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.

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Before CABRANES, POOLER, and RAGGI, Circuit Judges.

Judge POOLER concurs in part and dissents in part in a separate opinion.

REENA RAGGI, Circuit Judge:

This case comes before us on remand from the Supreme Court. See Bailey v. United States, ––– U.S. ––––, 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. See18 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. SeeU.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, 20051. 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 Baileya. 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 History1. 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.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.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...