Put enough exceptions next to each other and you come out with a decision like State v. Jeremy Kelly, a case of such extraordinary wrongfulness that Gideon at A Public Defender has twice now dissected it in great detail. Gid gives the short version of the undisputed facts:
The relevant facts are important because they are preposterous: the police were looking for a man named Gomez, for whom they had a warrant for violation of probation and had allegedly received a tip that he may be armed. They, while cruising in the South End of Hartford near his residence, observed two individuals walking on the sidewalk.
Because there was a gas station at the end of the street that was known to be a spot for drug sales, the officers concluded that the men had come from there. They then decided that one man fit the description of Gomez; the other was Kelly. They observed the two men walk up the driveway of a house and while one “turned his foot as if about to run” they continued to walk slowly to the rear.
Deciding, based on this, that criminal activity was afoot, the police ordered them to stop. Kelly informed [them] that he lived there, but that didn’t matter. The police ordered them to “come here”, at which point they ran. Kelly was subsequently arrested and charged with possession of drugs. They guy they thought was Gomez was actually not and was instead a fellow named Burgos.
By aligning the latitude granted the police when they act upon ignorance, assumption and the ubiquitous carte blanche of officer safety, a guy named Kelly, who was near a guy named Burgos who they thought was a guy named Gomez who might have been armed, is deemed lawfully seized, searched and busted.
So the cops thought Burgos was Gomez, because he was engaged in the suspicious conduct of being Hispanic, and walking in the opposite direction of a gas station “known to be a spot for drug dealing,” like every other spot in the area. He was also walking in the opposite direction of the Vatican, but nobody mentioned that. I’m fairly sure that the “turned his foot as if about to run,” but then walked, is a reference to a secret Opus Dei ritual.
Burgos was scary, because he could have been Gomez if he hadn’t been Burgos, and somebody said Gomez might be armed. So Burgos’ rights are compromised because the cops had no clue who he was, and the First Rule of Policing entitles them to be scared. As courts are wont to explain, cops aren’t expected to be perfect, which entitles them to act upon ignorance whenever possible.
Burgos is lucky they didn’t just take him out for making a furtive gesture, which also would have been perfectly lawful since police can never be too careful. Hey, if Burgos went for his waist, what else could the cops do? It’s not like they’re held to only shooting the people they actually know when not knowing who the guy is or what he’s doing is far more of a threat in their fertile imaginations.
But what of Kelly? He wasn’t Gomez. He wasn’t even Burgos, who at least was guilty of standing there looking all Hispanic and stuff. Kelly had the misfortune of propinquity, the word used by the Supreme Court in Ybarra v. Illinois to explain that being in the proximity of someone the police can lawfully toss doesn’t create suspicion to toss him as well. But that’s in the United States of America. Kelly was in Connecticut.
They were looking for Gomez and even that they got wrong. But yet they had seized Kelly under Connecticut law at the time they ordered him to stop while he was walking up the driveway to his own residence.
Their justification was officer safety. They argued successfully that the police, when detaining a man they believe to be armed, should be given carte blanche to stop every other citizen of Connecticut in that person’s vicinity even if they have absolutely no reason to do so.
But isn’t it reasonable to think that if Kelly was hanging with Burgos, who the police thought was Gomez, who the police thought might have been armed, Kelly must be an imaginary bad dude too?
If you are walking your dog in your idyllic neighborhood and stop to speak to someone else doing the same, should the police be able to seize you both? If you’re walking down the street to buy a big gulp at the corner of Capitol Avenue across from the Legislative Office Building, should the police be able to seize you because you shook hands with some guy you see around the block but don’t really know? If you’re standing at a bus stop with 5 strangers, should the police be able to detain each and every one of you?
There are a laundry list of possible reasons why guilt by proximity might be accurate. There are a laundry list of possible reasons why the first laundry list is completely, ridiculously wrong. The Connecticut Supreme Court decided that laundry lists of rational bases for seizing an individual suck.
The dots connect more easily in a case like this when one not only appreciates, but exalts, the need for officer safety. The First Rule of Policing not only applies to cops, but is of far greater importance to judges than some of the other rules, often uttered in Latin, to explain the virtues of constitutional rights. These often appear in the first line of an opinion, thereupon followed by pages of explanations why the exceptions trump the rule.
As the decision in Kelly reveals, there is only one rule that holds firm, standing above all others, to which there is never an exception: It’s the First Rule of Policing, that there is no right of an American more important than making sure a police officer makes it home for dinner. And whatever he has to do, no matter how ignorant the initiation of his seizure, how assumptive the surrounding circumstances, or how irrelevant the propinquity, to protect himself, the First Rule of Policing is more important than a person’s constitutional right to be left alone. That’s the holding of Kelly.