Dan Klau – lawyer, blogger and Connecticut resident – and I engaged in a lengthy back and forth conversation last week on the importance of the Fourth Amendment, searches and seizures, the recent CT Supreme Court opinion in State v. Kelly and the mess in Ferguson. This is, we hope, the first in a series of conversations about pressing legal issues.
DAN: Gideon, on August 12, 2014, the Connecticut Supreme Court officially released its decision in State v. Kelly [PDF]. The defendant challenged his arrest and conviction (on a conditional plea of nolo contendere) for narcotics possession with the argument that his initial arrest violated the Fourth Amendment and its counterpart under the Connecticut Constitution (article first, §§ 7 and 9). A majority of the Court held that the police were entitled to conduct a limited “stop and frisk” of the defendant, also known as a Terry-stop after the U.S. Supreme Court’s 1968 decision of the same name, even though the police did not have a reasonable, articulable suspicion that the defendant had done anything wrong. What they did have was a reasonable, articulable suspicion that another person who was walking down the street with the defendant when they detained him had committed a felony. That suspicion, the Court held, was reason enough to detain the defendant along with the actual suspect.
On twitter, on your blog, and in person, you have repeatedly complained to just about everyone you know about the lack of press coverage this decision has received. Why do you think this particular case is so important?
GIDEON: To understand why this case is so important we have to ask ourselves several questions: do I want to be stopped by the police when I’m out on the street, for absolutely no reason? Do I want to give the police that power over me; to seize and detain me, without any reason whatsoever to believe that I have done anything wrong? Is it fair that I should lose my individual right of freedom just because the police might mistakenly suspect my companion of committing a crime?
Frankly, there are also a lot of undertones of privilege. The common response is: “if I haven’t done anything wrong, I have nothing to hide”. So some might say: what’s a minimal incursion on my individual liberty if there’s something greater at stake: stopping crime. And that may be true for you. But it’s not true for thousands of others in our community. It’s not true, particularly, for the less privileged. For them, police intrusion is a repeating and wearying occurrence. For them, police intrusion is a way of subjugation. We have the luxury, from our suburbs or positions of privilege, to say that it isn’t a big deal. But just ask the people of Ferguson, or those stopped and frisked by the hundreds of thousands in NYC.
This case is important because there aren’t two sets of laws: one for the privileged suburban folk and one for the poor minorities. There is one law. This law applies to all of us. There is one Constitution. The right to not have our liberty confiscated without particularized suspicion applies to all of us. That’s why this case is critical.
DAN: That’s quite a bit to chew on. Let me try to break it down by asking you a quick follow-up question. My impression from your twitter and blog comments is that you think the Kelly decision marks a significant change or departure from existing search and seizure precedent. Is my impression correct? And, if so, in what way do you think Kelly changes the law?
GIDEON: It is indeed a departure from existing law. The closest analogy is what everyone knows of as a “Terry” stop or a pat down – in other words, a stop and frisk. The law in that regard is that police need “reasonable and articulable suspicion” that a person has committed or is committing a crime in order to minimally detain them and conduct an investigation. Further, if they believe that the person is armed, then they can conduct a “limited” pat-down to search for weapons. So up to now, an individual’s liberty can only be seized if the police have some particular belief with regards to the subject of the seizure.
Kelly has created a whole new category whereby it is not necessary for police to have any belief that the person they want to detain has committed or is committing a crime or is armed. That, to me, is a significant departure.
DAN: OK. Let me challenge you on that point. In my opinion, a critical aspect of the decision—and perhaps a reason why it has not received much press attention—is that the defendant asked the Court to decide whether the Connecticut Constitution afforded him greater protection under the circumstances of the case than the Fourth Amendment. Why did the defendant ask the Court to consider the state constitution? Because it seemed fairly clear, at least to me, that he had no Fourth Amendment claim under existing precedent.
Here’s why: As you know all too well, the protections of the Fourth Amendment, i.e., the need for a warrant based on probable cause and signed by a judge and the requirement that any search or seizure be “reasonable” even in the absence of a warrant (like in a Terry-stop case) only come into play if the conduct of the police rises to the level of a “search” or “seizure.” The decision in Kelly cites U.S. Supreme Court case law for the proposition that when police tell a person to “stop” so that the officer can question him/or, that verbal command does not constitute a seizure for Fourth Amendment purposes unless the person actually submits to the officer’s request.
Why is that important in this case? Because when the police told the defendant and his companion to “stop,” they did not submit to the request. Thus, there was no seizure of either the defendant or his companion at that point under the Fourth Amendment. The defendant and his companion then both ran away from the police officer. While running, the defendant dropped a bag of cocaine. That gave the police officer a constitutionally justifiable basis to detain him.
In short, at least as far as Fourth Amendment jurisprudence is concerned, the decision does not seem like a departure from existing law. I’m not saying I like the current state of Fourth Amendment law. For the reasons you mention, I think it affords the police far too much discretion to stop people without a truly legitimate justification. I’m just not sure the decision represents a significant change in federal law.
GIDEON: Well, the Fourth Amendment to the United States Constitution provides the bare-minimum of rights that are given to citizens. States are free to provide greater protections – and in Connecticut we have. In our state, our freedom is “seized” under the state constitution when a reasonable person would not feel free to leave.
The argument in this claim of a constitutional violation is based on a violation of the Connecticut Constitution, which provides greater protections to our residents than does the federal constitution. So talking about the federal constitution is irrelevant in this circumstance. All the parties – the prosecution, the trial judge, the defense attorney, the Appellate Court and the Supreme Court – agree on two things: 1) that Kelly was seized under the state constitution when he was first told to stop and, 2) more importantly, that the police had absolutely no reasonable or articulable suspicion to seize him when they did.
In other words, they had absolutely no basis to stop him and yet they did. And the Supreme Court justified that by saying that people who, as far as the police know, are completely innocent and have not given any indicia of criminal activity can still have their freedom curtailed because of officer safety. I’m not the only one who thinks this is wrong and quite problematic: two justices wrote a blistering dissent from the Court’s opinion.
DAN: So now we are getting to the nub of the case. I agree with everything you just said. I just think it is important for readers of the decision to understand that the Fourth Amendment was irrelevant in this case because, under federal law, the police did not “seize” the defendant when they told him and his companion to “stop.” That command, however, was a seizure under the state constitution.
So now let me ask you this hypothetical, which I admit right up front is different from the facts of the Kelly case: Suppose the police have a reasonable, articulable suspicion that person A has committed a violent felony and they locate that person walking down the street with a companion, person B. The police ask person A to stop. He does, as does person B. The police want to conduct a stop and frisk of A. What should they do about B, who is hanging around? They could tell him to move along. What if he doesn’t?
GIDEON: Yes, it’s critical to remember that our state constitution in this case provides more protection than the federal government and that’s a good thing.
In your scenario, I think the police should do nothing. B is legally on the street; he isn’t harassing them and they don’t suspect him of committing a crime. He has every right to be there and should be allowed to. If, of course, he starts interfering with them then they can determine if he needs to be detained.
But your question raises a very important point: imagine if B is a reporter, or just a citizen photographer. Shouldn’t he be allowed to be on the street to observe their stop-and-frisk of A? Don’t we want citizens to have the ability to observe and record our constabulary? If we start saying that hey, if B doesn’t scoot, the police should have the ability to arrest him, we open ourselves up to all sorts of abuses: why wouldn’t they just simply banish all press and photographers from scenes of arrest so there’ll be no record of their violence?
DAN: I think you’ve touched on a key point about the opinion, and one that has bothered me since I first read it. As you state, the Connecticut Supreme Court has interpreted the Connecticut Constitution as providing more protection against searches and seizures than does the Fourth Amendment.
One of the ways in which our state constitution provides greater protection is by “triggering” the constitutional protections against searches and seizures (i.e., warrants, probable cause, reasonableness, etc.) at an earlier point in the police/suspect interaction. To briefly reiterate, whereas a seizure does not occur under the Fourth Amendment when the police demand that a person “stop” until and unless the person actually submits to the stop, under the state constitution the seizure occurs when the police officer makes the demand to stop, period. Since the demand to stop itself is the seizure, it must be supported by at least a reasonable, articulable suspicion to pass state constitutional muster.
The problem I have with the Kelly opinion is that what the Court giveth with one hand it taketh away with the other. Having provided state constitutional protection at the “demand to stop” stage, the Court then says that it is ok to stop a person as to whom the police have no reasonable suspicion whatsoever, simply because he happens to be in the company of someone who they do have justification to temporarily detain.
To me, the decision is inconsistent with the notion that the state constitution provides greater protection than the Fourth Amendment. Which is why, I suspect, Justices Eveleigh and McDonald dissented.
GIDEON: I think you’ve hit it spot on, Dan. And in order to demonstrate the ills of permitting police such unchecked power, we need look no further than the events of the last week. Ferguson is showing us exactly why we need greater protections for individuals and less power in the hands of law enforcement. The reports coming out of Ferguson of “walking protests only” and the arrests of journalists represent a worst-case scenario for the abuse of the ‘detention of companions’ policy endorsed in Kelly.
Imagine a scene where an officer is arresting a person for whom he has suspicion. His companion starts recording the encounter. The officer, applying Kelly, detains the companion for officer safety and thus: 1) shuts down the recording, or 2) arrests the companion for interfering with an officer if he keeps recording. Is this what we want?
And of course, we still haven’t touched on the fact that the court failed to define just what a companion is.
DAN: I don’t want that! I’ll let you have the last word this time. I look forward to our next conversation!