A U.S. Supreme Court case on police authority under the Fourth Amendment to stop and detain a gun suspect has been resolved by the U.S. Court of Appeals, but not to the benefit of defendant Chunon Bailey.

Bailey had appealed to the Supreme Court after the Second Circuit upheld his convictions for gun possession and drug dealing. He won a measure of victory in 2013 when the Supreme Court said police exceeded their power to detain him for a search when they stopped him a mile from the apartment where other officers, armed with a search warrant, were looking for a gun.

The Supreme Court held in Bailey v. United States, 133 S.Ct. 1031 (2013) that a detention to search was limited “to the area in which the occupant poses a real threat to the safe and efficient execution of a search warrant” (NYLJ, Feb. 20, 2013).

But the court expressed no view on an alternative ruling made by Eastern District Judge Joseph Bianco that was not addressed by the circuit: that police still had the authority to stop and question Bailey based on reasonable suspicion that he had committed a crime under Terry v. Ohio, 392 U.S. 1 (1968).

On Friday, on remand from the Supreme Court, a divided Second Circuit panel said that Terry v. Ohio “supported Bailey’s initial stop” as it affirmed his convictions for a second time and ensured that Bailey would serve a long stretch in prison.

On July 28, 2005, Suffolk County police were ready to search an apartment at 103 Lake Drive in Wyandach that Bailey had rented.

Their search warrant was supported by a confidential informant who said he had purchased crack from Bailey at both a prior address in Bay Shore and his new address on Lake Drive and that the informant had seen a .380 caliber handgun several times.

Police conducting surveillance of the apartment saw Bailey and another man leave in a car. They stopped the pair about a mile away, patted them down and questioned them.

Bailey said he was coming from “my house” at “103 Lake Drive” and produced a driver’s license showing his prior address in Bay Shore. They also held on to Bailey’s keys, one of which later fit the lock of the apartment.

The police then handcuffed the men while other officers searched the apartment, recovering crack cocaine and a handgun.

In Brooklyn, Bianco refused to suppress the evidence and statements made by Bailey, finding his detention legal as incident to an authorized search under Michigan v. Summers, 452 U.S. 692 (1981) as well as Terry.

In 2007, Bailey was convicted of possession with intent to distribute more than five grams of crack cocaine, being a felon in possession of a firearm and possession of a firearm in furtherance of a drug crime. Bianco sentenced him to 30 years in prison.

The Second Circuit affirmed in 2011, Bailey went on to the Supreme Court to prevail under Michigan v. Summers, and then headed back on the remand to the Second Circuit, where oral argument was heard on June 19, 2013.

On Tuesday, Judges Reena Raggi (See Profile) and Jose Cabranes (See Profile) were in the majority in upholding the stop while Judge Rosemary Pooler (See Profile) dissented.

“Here, we deal with a stop lasting a total of ten minutes before police sufficiently confirmed their suspicions to arrest Bailey on undisputed probable cause,” Raggi wrote for the majority in United States v. Bailey, 07-3719(L).

That brief detention, Raggi said, “did not exceed the permissible scope of a Terry stop simply because, for its last few minutes, police were not questioning Bailey, but, rather, were awaiting the results of a court-authorized search of the location from which Bailey was just seen to depart.”

So statements Bailey made confirming his identity and his admission that he resided at 103 Lake Drive, plus the keys he had in his pocket, were admissible at trial, said Raggi, with the court holding “that a defendant reasonably suspected of criminal activity at particular premises may be detained briefly pursuant to Terry while police lawfully search the premises to confirm or dispel that suspicion.”

The majority then agreed with Bailey that statements he made to the police after being handcuffed—claims that he did not live at the apartment, that nothing in the apartment belonged to him and that he would not cooperate with the investigation—were tainted as beyond the scope of Terry.

Nonetheless, the majority concluded that the introduction of these statements at trial was harmless error.

Pooler in dissent said, “I believe the initial stop was not supported by reasonable suspicion under Terry.”

Pooler said she would have reversed for a new trial “untainted by the erroneously admitted evidence gathered from the initial stop and subsequent unlawful detention.”

Kannon Shanmugam and Kristin Feeley of Williams & Connolly and Susan Tipograph represent Bailey.

Assistant U.S. Attorneys Charles Kelly and Peter Norling represent the United States.