Argument Recap: Guilt by association because we’re all criminals


It didn’t occur to me until earlier today, but there is a pattern here. The State has been trying for years to get great police powers at the expense of individual rights. But two things that happened in the last two days have really crystallized the extent to which they’re willing to go: 1. The absurd and frightening position staked out by the State of Connecticut at oral arguments yesterday, and; 2. Their repeated requests for vast investigative subpoena powers. I will take them up in turn.

The State of Connecticut thinks that everyone on the street is a suspect and the police should be able to detain anyone they feel like.

I wrote two days ago about the stunning argument the State is making in State v. Jeremy Kelly, where they are seeking to justify the detention of Kelly where he was only known to police officers as the guy standing next to someone they were looking for. Briefly, the police were looking for Gomez. They saw Burgos and Kelly. They thought Burgos was Gomez. They had no idea who Kelly was and were not interested in him. They ordered both men to stop. Both questioned that authority. The police repeated their commands. They both did not acquiesce and ran off. Kelly was eventually apprehended and charged with possession of cocaine.

The State argued that it did not need to show that there was any reason whatsoever to stop Kelly before making him submit to the police power of the State. The U.S. Supreme Court has said that a “brief, investigatory” stop is permitted where there is reasonable suspicion to believe that the person you are stopping has committed or is committing a crime. If you cannot show that reasonable belief, the stop violates the Fourth Amendment.

The State, though, urged the Supreme Court to adopt a ‘bright-line’ rule called the “Automatic Companion” Rule. It means essentially what you think it means: that the police should have the authority to automatically stop whomever is with someone they may think is committing a crime.

The hierarchy of standards goes something like this, from highest to lowest: beyond a reasonable doubt -> clear and convincing evidence -> preponderance of the evidence -> probable cause -> reasonable and articulable suspicion -> nothing.

So, R&AS is just a small step above nothing. It is slightly, but only just, more than a hunch. It requires that police officers put into words why they chose to stop someone as it relates to that person.

But no, this, apparently, is too difficult for the police. They want the power to stop everyone.

Justice McDonald, new to the bench, asked some pretty fantastic questions which elicited some of the most frightening responses. He asked: “what about a scenario where you’re looking for Gomez and you see Gomez standing at a bus stop, talking to 4 or 5 people also standing at the bus stop. Is it your position that the police can detain everyone at that bus stop?”

The answer, without a moment’s hesitation, was “Yes”.

The wheels did fall off the State’s argument when it became clear that their “bright-line rule” was nothing more than a request to have carte blanche thinly disguised. Their bright line rule included three components: 1. A reasonable suspicion that the person is committing a crime (the idiocy of this should be apparent now); 2. Officers get to decide who is a companion and who isn’t, and; 3. officers get to decide whether there is a concern for officer safety.

In other words, let the foxes guard the henhouse. We’ll be good, we promise. In yet other words, the State’s argument can be summed up as follows:

We want the right, when stopping someone for whom we have slightly more than a hunch, to be able to stop everyone near him, who may or may not be companions and who may or may not be dangers to our safety and we don’t want anyone to ask any questions about this and just, guys, look over there, a criminal!

It is also worth nothing that at this point, the State’s argument morphed entirely into a plea to create an “officer safety” exception to the State and Federal Constitutions.

The purpose, said the prosecutor, of this automatic standing rule is to allow the police to have “control” over the scene. When you’re out on the street, said the prosecutor, you don’t know who’s who and who has a gun and who might shoot you. So you want to be able to detain everyone. Freeze them in place so you can exercise control over them.

But what about the Constitution’s requirement, you might ask, that there be a reasonable and articulable suspicion? Officer safety.

What about the dangers that unscrupulous officers might use this expanded power to harass minorities in our urban areas? Officer safety.

If you’re concerned about officer safety, asked Justice McDonald, wouldn’t you rather have the person with the gun go away from the scene, rather than hang out nearby and expend more resources watching over him too? No. Erm. Yes. Well. Officer Safety?

The thing, though, is that Terry v. Ohio already takes into account officer safety. It already creates a balancing test: balancing the intrusion against the need to quickly investigate and the safety of the officer. Terry already does what the State wants to do, without the ‘Big Brother’ vibes. Is it too much to ask our peace officers to be able to state a single reason why they thought the person was committing a crime?

When asked, are there any facts that you can articulate that would have led the police to believe that Kelly was committing or had committed a crime, the prosecutor said the following (and I’m paraphrasing from someone else’s memory): 1. They wanted his companion; 2. It was a high crime neighborhood; 3. Kelly was holding his waistband.

What, in my opinion, was left unsaid was that Kelly was a minority in a minority neighborhood and it was more likely than not that he was either carrying a gun or some drugs.

The dangers of permitting such a bright-line rule giving the police vast detention powers to stop people without any reason to believe they are committing a crime is potential for unprecedented abuse. The impact that this could have on relationships between the police and minority communities is also worth considering.

Put another way, the State’s position is that everyone on a street (and that’s code for minorities. Rich whiteys need not worry) is a potential danger to police officers during an encounter. They are all criminals, about to hurt officers or run away and hide evidence of crimes. They just haven’t been caught yet.

The State was also asked: Can you ask someone lawfully at the scene to go away? Under certain circumstances, came the reply. Well, what if someone is recording your police officer? Can you order them to leave the scene? Yes, was the reply.

Some members of the Court were unimpressed. Others were looking for ways to affirm this conviction.

While they may not support a bright-line rule (and I think that was the fatal flaw in the State’s argument), what should trouble everyone is that a prosecutor representing the State of Connecticut stood in front of the State’s highest judicial court for 30 minutes and argued that the police officers of this State should have carte blanche to, essentially, stop whomever they want. The Fourth Amendment? A mere nuisance that we can cut holes in to get through to our goal of catching more criminals. Put another way, the State’s position is that everyone on a street is a potential danger to police officers during an encounter. We are all criminals, about to hurt officers or run away and hide evidence of crimes. We just haven’t been caught yet.


For some good Fourth Amendment news, rare as it is, see this decision from SCOTUS yesterday in Missouri v. McNeely [PDF]. Orin Kerr at Volokh provides his insight here and see Scott Greenfield here.

3 thoughts on “Argument Recap: Guilt by association because we’re all criminals

  1. Pingback: The investigative subpoena: because who needs probable cause? | a public defender

  2. jane.p

    In a scenario, if guy 1 is suspicious, and he’s talking to guy 2, guy 2 can be detained. But what if guy 2 talks to guy 3? How far removed from the original suspicious individual do you have to be before you’re immune to this rule?

    It strikes me as a silly argument because it so blatantly ignores basic civil rights.

  3. Pingback: Give an inch and now they’re suggesting forced interrogations | a public defender

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