There appears to be much rending of garments and gnashing of teeth over the claim that Freddie Gray’s arrest itself was unlawful, thus tainting every aspect of subsequent police conduct, thus murder!11!11!
The thinking, as near as I can understand it, is as follows:
(1) Freddie Gray did no more than merely make eye contact with police officers, and then flee. (At this point the police did not know that Gray possessed a knife, whether legal or not.)
(2) On this basis the police initiated a pursuit and stop of Gray.
(2) This police conduct fails to meet the standard of probable cause necessary for an arrest to be Constitutiona, making the arrest unlawful
(4) Even if Gray’s knife is indeed unlawful it must be suppressed as evidence because it is the fruit of the tainted tree of the unlawful arrest, as the police did not know of the knife when they initiated their interaction with Gray.
(5) ????
(6) The police in custody of Gray murdered him.
Sadly, this conception of the events in this case and the conclusion drawn merely reflects a rather profound ignorance of what the Constitution permits in terms of police interaction with the public.
The simple truth is that under the facts as known in this case the police had more than sufficient grounds on which to arrest Freddie Gray. (Whether the police used excessive force in making that arrest or murdered Gray in the van are, of course, separate issues, which we’ve already touched upon in detail here: What do we REALLY know about why Freddie Gray died?)
As is our practice in our posts here at Legal Insurrection, then, let’s take a step back from the narrative of the mob and the activists and media (but I repeat myself) responsible for their care and feeding, and look to the actual law.
While there have been numerous Supreme Court decisions touching upon one or another of the Constitutional issues raised when police interact with the public, the touchstone in the modern era is Terry v. Ohio, 392 U.S. 1 (US Supreme Court 1968).
In Terry the Supreme Court distinguished various degrees of interaction between the police and the public, and established the legal criteria that scoped whether those interactions were Constitutional.
The least degree of interaction, of course, is a police officer merely observing someone in public. This raises no Constitutional issues, and is entirely lawful.
On the other extreme, the greatest degree of interaction between police and public, for purposes of this discussion, is the arrest. Simply put, an arrest occurs when the police have seized custody of your person and you are placed under their physical control pending further processing in the criminal justice pipeline.
It is often the case, however, that the initial interaction between an officer and a member of the public is not a full-out arrest, but a less intensive stop. During a stop the officer might question the suspect and try to develop further information about the circumstances that led to the stop.
It is in the context of such a stop that Terry makes its mark, and to this day police stops of the nature under discussion are referred to as “Terry stops.”
Bottom line: An arrest and a stop are distinct types of interactions between police and the public.
In order for an arrest to be lawful the arresting officer must have probable cause to believe that the suspect has committed a crime. Probable cause in this context means that the officer must have a reasonable (meaning, the application of reason to observed evidence) and articulable basis for this belief.
Probable cause is not, however, required in order to make a mere stop. The legal requirement for a stop is the lower threshold of reasonable suspicion.
So, what is reasonable suspicion?
Interestingly, Terry itself uses the phrase reasonable suspicion only once, and not in the context of providing a definition. This, however, is the conduct of Terry and his cohorts which the Court found was sufficient to raise a reasonable suspicion in the officer who initiated the stop:
Officer McFadden testified that, while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35, and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years, and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case, when I looked over, they didn’t look right to me at the time.”
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece — in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.
By this time, Officer McFadden had become thoroughly suspicious.
As can be seen, no explicitly unlawful behavior is required to raise a reasonable suspicion–merely suspicious behavior is sufficient.
(Given the importance of Terry in American jurisprudence, I do of course urge you to read the whole thing.)
How does this compare to the police interactions with Freddie Gray in the case du jour?
Freddie Gray had an extensive criminal record, and this was well known to police officers in the community. He was, in short, known to engage in unlawful criminal activity with a frequency that would in any other context be considered evidence of a notable work ethic. He had at least 18 arrests in the ~8 years between 2007 and his death in 2015–and it is worth keeping in mind that the only reason his arrest record here begins in only in 2007 is that prior arrests would be sealed as juvenile records.
It is also notable that although Gray’s early arrests were apparently confined to drug offenses, in later years he began to be charged with acts of violence, including several charges on differing dates of second-degree assault, as well as burglary.
In addition, the neighborhood where the arrest occurred is known more generally for being a high-crime area, and so the police would be expected to be particularly attuned for indications of criminal conduct.
In this context the police observe well-known criminal Gray acting in a manner that they perceive as noteworthy. The police begin to approach Gray, a form of police conduct that requires no particular legal justification at least until an actual interaction has begun. Observing the police approach, Gray substantially increases the suspiciousness of his conduct by fleeing the officers.
At this point the Constitutional grounds for a Terry stop have clearly been met.
Again, not adequate grounds for an actual arrest, but adequate grounds for a mere stop.
One important facet of a Terry stop is that it allows the police to conduct a surface frisk of the suspect for purposes of safety.
This is a far more limited search than is permitted during a full-on arrest. During an arrest, the police may thoroughly search through your pockets, for example, for any items that might prove to be contraband, or even to simply document your possessions at the time of arrest.
In the cast of a Terry stop, however, the police are limited to a superficial pat down or frisk of the suspect’s outer body to ensure that they do not apparently possess weapons capable of endangering the officers or the public.
That said, if the pat down or frisk discloses the identifiable presence of a weapon in a pocket, for example, then that weapon may be secured to ensure the safety of the scene.
The securing of such an item is perfectly lawful, and if the item turns out the be contraband it is perfectly appropriate as the basis for the probable cause necessary to make an actual arrest.
In the context of Freddie Gray, we’ve already seen that the Constitutional basis for a Terry stop was present.
Upon making the Terry stop, the police report that they frisked Gray, and felt the presence of a folding knife in his pocket.
Upon securing the pocket knife, they observed that it was of a type unlawful to possess in Baltimore, and thus contraband.
The discovery of Gray in possession of contraband forms the probable cause for charging Gray’s with the relevant crime and effecting his arrest.
None of this, of course, settles the arguably more central issue of how it came to be that Freddie Gray died in police custody, as we covered in our earlier post here: What do we REALLY know about why Freddie Gray died?
It does, however, suggest that it’s quite likely the police had sufficient legal grounds upon which to stop, frisk, and arrest Gray.
–-Andrew, @LawSelfDefense
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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.
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