Tomorrow at 10:00am, the Connecticut Supreme Court will hear argument in one of the most important cases to come before them in a long time. The case involves the authority of the police to stop and detain individuals just because they happen to be on a public street alongside someone the police might be looking for. In other words, the authority to automatically detain the companion of someone who is a suspect. In fewer words: guilt by association.
First, some setup. The Constitutional provision at play here is the Fourth Amendment, which protects against “unreasonable searches and seizures”. Normally, in order to enter a home or to arrest someone, the police need a warrant based on probable cause. In rare circumstances, a warrantless arrest or seizure can also be made, but it also must be justified by probable cause.
“[A] police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.”
State v. Clark; see also Terry v. Ohio. What that means is that even if an officer is making a brief investigatory stop, he has to be able to articulate a reasonable suspicion as to why he believes that particular person is engaged in criminal activity.
The facts. Got it? Okay. So, in State v. Kelly, police officers were looking for a guy named Gomez. They had the most generic of descriptions of Gomez before they set out that day: 20-22 year old Hispanic male. 5’5-5’7, 130-150lbs, medium complexion and very short hair. Everyone whom that description fits, raise your hands. They wanted to serve a warrant on him for violating his probation. They didn’t know how he had violated his probation or what he was on probation for. Despite their considerable resources, they hadn’t even bothered to look at a photo of Gomez before setting out.
They got a tip from one of their informants that Gomez might reside in the area of Brown Street in Wethersfield. So off they went, with only the most generic of descriptions. They come upon two men, Burgos and Kelly. While Burgos is Hispanic, he apparently had very lengthy hair. Kelly is African-American. So, in no way could Kelly be mistaken for Gomez.
Yet, the two officers decide to stop the two men and displaying their badges, motion for them to come over. [Under Connecticut state law, a broader definition of seizure applies than under the Federal Constitution - meaning we have greater protections. So a person is seized when a reasonable person would not feel free to leave a police encounter. State v. Oquendo.] Burgos asked “what for?” and Kelly said “I live here”. The police continued to order the men to come to them at which point they both took off running. For some reason, the police abandoned their chase of Burgos-who-they-thought-was-Gomez and focused on Kelly. They say him drop a baggie of something and he was eventually apprehended and charged with possession of cocaine.
The argument Kelly raises on appeal is essentially this: if, as described above, the police need particularized and individualized suspicion to infringe on someone’s Fourth Amendment right and the only reason they stopped him was because they were looking for Gomez, then his seizure and detention is in violation of the Constitution. The police admitted during the suppression hearing that they did not suspect Kelly of committing any crime when they stopped him and that they stopped him merely because he was walking next to the guy they thought they were looking for.
The State argues, however, that this violation of a Constitutional right is permitted because of the so-called “automatic companion” rule: that any time the police suspect that a person on the street is someone they are looking for or want to investigate, they have the authority to stop whomever else that person is with, in the name of officer safety.
The Appellate Court likened this situation to the line of motor vehicle stop cases in the United States Supreme Court, which has held that it is Constitutional for an officer to order a passenger out of the car during such a stop. Maryland v. Wilson. SCOTUS has also said it’s okay to detain passengers while the car is searched for contraband pursuant to a warrant. Michigan v. Summers.
Those cases, in my opinion, are quite different:
- First, SCOTUS has carved out a very specific exception to the Fourth Amendment for motor vehicles due to their distinct nature. The automatic companion rule is not just an extension of the motor vehicle exception, but is another new comparable exception.
- Second, passengers in a car are different than two people walking on a street. Passengers in a car are, by definition in some sort of companionship relationship together and, more importantly, it is physically impossible to stop a car and detain only one person inside while letting the others go on their way. That is not the case with two people walking on the street. It is far easier for officers to approach one individual – the one for whom they have reasonable and articulable suspicion or probable cause – while asking the others to step aside or go on their way. They are severable in a way that passengers in a car aren’t.
- Finally, the motor vehicle cases presuppose that the entire car has been legally detained and then say that, once legally seized, to ask a passenger to step outside is a de minimis intrusion that is justified by officer safety. Here, that first step is at issue: is Kelly legally detained to begin with? The answer, of course, is no, unless you adopt the view that you do not need a specific particular individualized reason to stop him as long as he is with someone else whom you do have reason to stop.
The implications of permitting a rule whereby police can stop every person for whom they may or may not have reasonable suspicion and every companion in their immediate radius are frightening. One need only look at the allegations of racial profiling that have landed East Haven in trouble or the trial of the stop and frisk policies of New York City Police to know that permitting wholesale detention and seizure of people on inner city streets based on nothing more than “guilt by association” would result in, well…just look at these stats:
In 2010, New Yorkers were stopped by the police 601,285 times.
518,849 were totally innocent (86 percent).
315,083 were black (54 percent).
189,326 were Latino (33 percent).
54,810 were white (9 percent).
295,902 were aged 14-24 (49 percent).
In 2011, New Yorkers were stopped by the police 685,724 times.
605,328 were totally innocent (88 percent).
350,743 were black (53 percent).
223,740 were Latino (34 percent).
61,805 were white (9 percent).
341,581 were aged 14-24 (51 percent).
In 2012, New Yorkers were stopped by the police 533,042 times
473,300 were totally innocent (89 percent).
286,684 were black (55 percent).
166,212 were Latino (32 percent).
50,615 were white (10 percent).
If you think that’s a NYPD specific problem, look at these Philly PD allegations.
But it’s about more than all of that. It’s about the strength of our rights and the Constitution. Do we want an America where we can walk down the street and talk to whomever we want, without fear of being stopped by the police just because of the person next to us, even if they don’t suspect us of doing anything wrong?
Should we not require that bare minimum? If the police want to stop a person – any person – they should be required to say why they stopped that person that’s not “because he was talking to a drug dealer”? Talking to a dealer isn’t a crime. Our police forces shouldn’t have license to stop anyone they feel like without a suspicion that they are committing or have committed a crime. And, let’s be honest, that standard is absurdly low. Just look at their inept efforts to apprehend “Gomez” and how they bumbled into Burgos and Kelly instead. Was the stop of Burgos legal? How can we permit what happened to Kelly? And if this is permitted, what else will be?