[This is my latest column for the CT Law Tribune, republished here because they’re stuck behind a paywall.]
In 1979, the United States Supreme Court in Ybarra v. Illinois held that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”.
Indeed, it is one of the core requirements of the right to be free from unreasonable searches and seizures and also the right to expectation of privacy, that officers of the government need independent, particularized suspicion and cause as to the person they seek to search or detain.
In other words, if police want to stop you, they have to have some reasonable suspicion that you committed a crime or are in possession of a weapon. Even the watered-down “stop-and-frisk” standard of Terry v. Ohio required this ‘particularized’ suspicion:
The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.
There are several important reasons for this, stemming from the Founding Fathers’ strong dislike for a practice of the British crown at the time called ‘General Warrants’ or ‘Writs of Assistance’. As I’ve written here before,
these writs of assistance were permanent search warrants which decreed that any place could be searched at any time at the whim of the holder. The colonists’ hatred for these general writs gave birth to the Fourth Amendment and its mandate of specific, particularized warrants and its protection of papers and effects from search without probable cause.
Despite these specific, unambiguous protections afforded all citizens of the United States – and by extension the State of Connecticut – our state supreme court last week somehow managed to ensure that the conviction of one Jeremy Kelly remained intact.
The relevant facts are important because they are preposterous: the police were looking for a man named Gomez, for whom they had a warrant for violation of probation and had allegedly received a tip that he may be armed. They, while cruising in the South End of Hartford near his residence, observed two individuals walking on the sidewalk. Because there was a gas station at the end of the street that was known to be a spot for drug sales, the officers concluded that the men had come from there. They then decided that one man fit the description of Gomez; the other was Kelly. They observed the two men walk up the driveway of a house and while one “turned his foot as if about to run” they continued to walk slowly to the rear. Deciding, based on this, that criminal activity was afoot, the police ordered them to stop. Kelly informed that that he lived there, but that didn’t matter. The police ordered them to “come here”, at which point they ran. Kelly was subsequently arrested and charged with possession of drugs. They guy they thought was Gomez was actually not and was instead a fellow named Burgos.
Engaging in that first-year of law school exercise of applying the facts to the law, at no time during the entire encounter did the police have any basis for suspicion that Jeremy Kelly had been or was presently engaged in any criminal activity. They were looking for Gomez and even that they got wrong. But yet they had seized Kelly under Connecticut law at the time they ordered him to stop while he was walking up the driveway to his own residence.
Their justification was officer safety. They argued successfully that the police, when detaining a man they believe to be armed, should be given carte blanche to stop every other citizen of Connecticut in that person’s vicinity even if they have absolutely no reason to do so.
Sadly, our supreme court bought this argument in its 5-2 decision. While acknowledging that even the bottom-of-the-barrel standard of Terry v. Ohio was not satisfied, it nonetheless reasoned that seizures without probable cause or reasonable suspicion were justified in some cases involving officer safety.
If the police mistakenly believe that a person is armed, then it is reasonable to believe that any other person in that person’s vicinity is also similarly armed and thus a danger to police officers.
That is the upshot of this decision and the implications for our cities are frightening. It is no secret that Connecticut has a racial profiling problem. The city of East Haven has had its share of allegations of racism against minorities, which resulted in a federal investigation. That, in turn, shone a light on the almost unused racial profiling reporting statute, which has led to the Alvin W. Penn Act which seeks to strengthen oversight of racial profiling. This decision is sure to make things worse: giving police officers the unchecked authority to make wholesale seizures of individuals in our cities without having to provide any particularized explanation for each seizure is sure to further increase distrust and dislike among the citizenry.
Keep in mind that one can only challenge the detention as illegal if you’re arrested as a result of it. Otherwise there’s no recourse. A vast majority of people will be detained and searched with no fruits, and thus no arrest. But it will serve to give police an almost all-powerful authority over regular folks who happen to live in “known crime neighborhoods”. People will be stopped solely because of their racial or economic statuses.
And what of those who want to exercise their legislature-given right to photograph police? Can the police use this power to detain those they suspect might do so and then arrest those who disobey for interfering with an officer?
The opinion further does nothing to define just who is a companion. If you are walking your dog in your idyllic neighborhood and stop to speak to someone else doing the same, should the police be able to seize you both? If you’re walking down the street to buy a big gulp at the corner of Capitol Avenue across from the Legislative Office Building, should the police be able to seize you because you shook hands with some guy you see around the block but don’t really know? If you’re standing at a bus stop with 5 strangers, should the police be able to detain each and every one of you?
According to this opinion, they can. We, in Connecticut, have lost the right to freely walk down a street and talk to whomever we want. We have lost the right to actually be suspected of a crime before we are seized and detained. We have lost the right to assemble freely with anyone of our choosing without the fear of being persecuted by the government for that assembly.
In other countries we would call this martial law. In America, we call it officer safety.