A principal foundation for the prosecution of the six police officers in Baltimore is the proposition, quite confidently put forward by State's Attorney Marilyn Mosby, that the knife for which Freddie Gray was arrested was legal for him to possess.
The officers are now disputing this. But it seems to me that a major point has been missed in virtually all the coverage of this case:
For assessing the propriety of the arrest, it makes no difference whether the knife was illegal. It only makes a difference whether the officers had probable cause to think it was. Probable cause does not mean certainty. It doesn't even mean more likely than not. The officers had probable cause if they had a fair reason to believe Gray had an illegal knife whether or not they turn out to have been correct. See United States v. Sokolow, 490 U.S. 1 (1989).
This is easy to see by calling to mind the law of search and seizure. The fact that contraband is found on a suspect will not retroactively vindicate the search if, at its outset, it was not justified by probable cause. Conversely, that no contraband is found does not invalidate the search so long as the police had a reasonable basis to think there was.
So far as I have seen, this fundamental point has been overlooked in the media's discussion of Freddie Gray's arrest.
Ms. Mosby's case will not necessarily unravel if the police are determined to have had probable cause, but it will start off with one foot in a deep bucket.
Press reports lead me to believe that the knife was found after they detained him.
Since he was known by police, had prior arrests for drugs and ran from police, is that probable cause to believe he was holding drugs?
Presence in a high crime area and flight from the police are insufficient standing alone to create probable cause that a crime is being committed, but they are sufficient to warrant further investigation. During that investigation, the officers are allowed to do a light pat-down. The knife may have been discovered during such a pat-down, or its outline could have been visible even without a pat-down.
Probable cause disputes are very fact-intensive. I do not have a clear enough picture yet of the facts of the stop to make a definitive judgment. My view, based on what has been reported to date, suggests that the prosecution for an illegal arrest is in big trouble.
Particularly apt in that regard is this passage from the Court's opinion in Illinois v. Wardlow, a 2000 case written by Rehnquist (https://www.law.cornell.edu/supct/html/98-1036.ZO.html):
"Nolan and Harvey were among eight officers in a four car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. App. 8. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U.S. 47 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis. Adams v. Williams, 407 U.S. 143, 144 and 147—148 (1972).
"In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (per curiam); United States v. Sokolow, supra, at 8—9. Headlong flight–wherever it occurs–is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U.S. 411, 418 (1981). We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further."