It’s unlikely that many readers remember the Dropsy Days. I don’t, and I’ve been around longer than most of you. I do, however, remember learning all about the Dropsy Days when I was a pup. For those asking, “what’s this guy talking about, I don’t even know what dropsy is,” allow me to explain.
Back in the 1960s, following the Supreme Court’s monumental decision in Mapp v. Ohio that held the exclusionary rule to be applicable to the states…
You mean there was a time when it didn’t?
Yes, Tiffany, there was; a time, long, long ago.
…the police were suddenly compelled to come up with explanations for the otherwise rampant conduct of warrantless searches of people they decided, for whatever reason, needed searching. And suddenly, out of nowhere, came the dropsy search.
Dropsy was when a police officer merely approached a person, without any questions or commands, and, inexplicably, the person would let a package whose contents were unknown fall from his hands to the ground. He would drop it. By doing so, he abandoned it, thus removing it from the purview of the warrant clause, whether state or federal.
The officer would then reach down, having seen the “thing” fall from the person’s hand to the ground, and pick it up. He would look at it. He would know, based on his training and experience, that it contained contraband. He would seize the package, and the person who inexplicably abandoned it on the ground.
This happened in case after case, defendant after defendant, day after day. It was incredible! Didn’t these criminals ever learn?
Criminal defense lawyers with long hair and muttonchops sideburns, often wearing wide flower ties would argue that their clients didn’t toss the drugs to the ground, that such a claim was an outrageous lie. And judges would uphold the seizures because, well, there was no reason not to. The officer had no reason to lie. The defendant couldn’t prove that he did. Suppression denied, and the promise of Mapp proved empty.
I have very fond memories of listening to Irving Younger talk about the Alger Hiss case at Cornell, thinking he was quite the spellbinding raconteur. He was also the man who wrote an article in The Nation in 1967, the year before he was elected a city judge in Manhattan, called The Perjury Routine.
When I wrote about the Ruiz decision out of Florida’s Fourth District Court of Appeals, it would have been the perfect opportunity to take this walk down memory lane. But I didn’t. Thankfully, Johnny Gardner at Law and Baseball did.
‘* * * Policemen see themselves as fighting a twofront war —against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example, the Supreme Court laid down the rule that evidence obtained by the police through a n unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed.
Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.
People v. McMurty, 314 N.Y.S.2d 194, 195-96 (N.Y. Crim. Ct.1970), (Younger, J.). “Dropsy” in 1970 has evolved into “consent” in 2010. The more things change the more they stay the same.
Dropsy died overnight. Judges rejected the testimony as facially incredible, and, miraculously, there were suddenly no more dropsy cases. But, as one might expect, that wasn’t the end of the story, or the end of seizures.
Chances are fairly good that there aren’t many judges sitting on the bench today who were practicing criminal law back in the 1960s, or remember Irving Younger’s article in The Nation, or think about the dropsy cases and how they suddenly disappeared from the well. They should remember, but it would likely make them feel sheepishly embarrassed at the rulings they give after suppression hearings, and no one wants to feel bad about themselves.
Judges have feelings? Do judges suffer from low self-esteem?
Yes, Tiffany, even judges have feelings. They’re human too. Some more than others.
But judges should remember. And Chief Judge Gross is wrong that “dropsy” has evolved into “consent” in 2010. The Dropsy Days were an easy, breezy time, when the cops fixed liberal rulings with simple “white lies.” Times have grown more complicated, and the police have adapted. No matter how good your fastball, you need to change it up with a curve every now and then. Maybe even a spitball if the ump will let you get away with it.
Consent has been part of the arsenal since those early, immature days. As has the ability to use the few provable facts combined with the unprovable, like the “poignant” smell of marijuana, or the omnipresent glassine handed off, as seen from 700 yards away through two buildings and a parked car. Whatever was needed, arose.
Yet here we are, forty something years later, still approving convenient testimony that no one really believes to be true, because we haven’t come to grips with the Dropsy Days when Irving Younger explained to all that the police do not always tell the truth.