The last execution date, September 23, ended with a stay pending determination of his application for certiorari to the Supreme Court. That came after a public outcry over the fact that most of the material witnesses against Troy Anthony Davis have since recanted their testimony.
That wasn’t enough for the State of Georgia. It’s not enough for the Supremes either. According to the AP, the Supreme Court denied cert to Troy Davis, removing the final roadblock to his execution. Apparently, the whole recanting witness thing was not sufficiently troubling to stand in the way of a prompt execution.
But that wasn’t the big news at the Supreme Court, yesterday. In fact, it barely made it onto the back page. Chief Justice Roberts, on the other hand, made a huge splash with his judicial noir dissent to the court’s refusal to grant cert to another case, Pennsylvania v. Dunlap. It’s huge news when a Supreme writes something prosaic.
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Under cover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.What feel. What passion. What a dark yet vibrant description of a cop’s life on the mean streets of South Philly. The CJ will never again be viewed as a guy with a cheap haircut, but as a man who spent far too much of his youth watching reruns of Dragnet.
I almost forgot. So what was CJ Roberts’ legal point? This:
That was not good enough for the Pennsylvania Supreme Court, which held in a divided decision that the police lacked probable cause to arrest the defendant. The Court concluded that a “single, isolated transaction” in a high-crime area was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not at tempt to flee. 941 A. 2d 671, 679 (2007). I disagree with that conclusion, and dissent from the denial of certiorari.
Stepping back from his enthralling prose, the sense of a problem courses through my veins. There’s something wrong here. Something hidden within the finely turned phrases, like “tough as a three dollar steak.” What could it be. What could it be.
Could it be that his judge noir dissent dismisses the efforts of the Pennsylvania Supreme Court as some sort of idiocy, a joke that any child could understand to be obviously wrong. No, that’s not it. Sure, the dissent was dismissive and reduced the efforts of the state Supreme Court to ridicule. But that’s nothing new.
Could it be that he cavalierly bought into the “high-crime area” scenario, the one that justifies anything by any cop in any city once one adopts simplistic descriptions in lieu of facts, those troubling things that stand in the way of letting good cops do their job. No, that’s not it. The use of “high-crime area” has become so ubiquitous as to become part of the legal vernacular, at least to any respectable lawyer whose career was mostly spent on the public teet.
Could it be that he has openly promoted an arrest based on nothing more than a “hunch” by a cop, proclaiming Devlin, with his overwhelming 5 years on the job, “knew” what was going on, despite the absence of actually seeing any drugs, or even a pattern of people engaged in a transaction with his “lone man on a street corner.” No, that’s not it. Obviously our Chief Justice falls into the category of judges who believes that police officers possess mystical powers that allow them to smell a crime a mile away, and don’t need no stinking observation of drugs to know exactly what some mutt is up to.
No, these things aren’t raising the hairs on my arm. My problem is that Chief Justice John Roberts chose to put in the time to write this very interesting, very curious, very gimmicky passage in a case where he wanted so badly to have the chance to reverse the Pennsylvania Supreme Court’s holding that an arrest based on nothing more than a hunch violated the Constitution, while the Supreme Court of the United States of America decided that it wasn’t worth their time to hear the appeal of Troy Anthony Davis, a man who may not be guilty of the murder of an off-duty police officer, thereby condemning him to death.
Roberts’ fascinating dissent bought him attention from CNN, two posts by Orin and one by Eugene at VC. At least Steve Vladeck at PrawfsBlawg took issue with the substance of Roberts’ dissent, while others were blinded by the CJ’s writing skills or endorsed the “hunch” theory of policing. The only saving grace is the Roberts was in the dissent, along with Anthony Kennedy, so that the correct decision of the Pennsylvania Supreme Court will stand.
If only the life a person receive this much attention.
Update: Paul Horwitz at PrawfsBlawg offers a particularly good description of CJ Roberts’ views (after he soundly criticizes his future potential as a mystery [or legal] writer):
. . . Roberts ultimately mentions only paragraphs later: that probable cause requires naivete from neither police officers nor judges, that it was most reasonable in the circumstances to conclude that this was a drug buy rather than some other transaction, and that the costs in resources and risk of life entailed in requiring closer observation outweigh the interest in greater certainty.
Nicely put, wasn’t that? That’s another way to say that the Chief Justice of the Supreme Court need not concern himself with such naive things as facts or evidence, because he “knows” what’s up. Why not just proclaim, “we know who the bad guys are, and if they didn’t do this crime, they would do some other crime. No harm, no foul.” Now there’s a money-saving philosophy.
How exactly did the Senate miss this during his confirmation hearings?
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As has been known to happen, the CJ, having decided which way he came down on the issue, took the position that if the court doesn’t accept it, the sky will fall.
Over at Volokh, an anonymous commentator who says he’s a Philly ADA, explains that there are easy ways around the Dunlap problem, which just involve the cops doing a bit (or, perhaps, a lot) more work before grabbing somebody — “Usually the cops will wait around for a couple of observed sales anyway (or will use a confidential informant, not an undercover officer, over a period of time), or will get some other evidence of dealing (scales, large amounts of cash) through a search warrant.” I don’t think that cops waiting for the second or third apparent buy in that sort of situation is exactly a huge burden. (On them. It’s likely to be a burden on the second or third purchaser.)
Which seems strange to my eye, in part. I got the multiple purchases part, but he seems to be arguing that there might be insufficient evidence to arrest somebody on the spot in that sort of thing, but enough to get a warrant to kick his door in.
Huh?
To undigress: Al’s waiting for Bob late at night, as Bob owes him $18.75, and Al wants to collect. Bob shows up, says he only has a twenty; Al says, “hey, no problem, I’ve got five quarters,” and they exchange the bill for the five small objects.
Has the watching cop probable cause to arrest either Al or Bob? (That they happen to not have any drugs on them is irrelevant.)
Roberts argues that if you look at previous cases that the Supremes have decided, all the cop needs is that “Hey, this looks like a drug deal to me” be a reasonable conclusion, and not necessarily the most likely.
I dunno. Sounds to me like the cop thinking a late-night, quick, money-for-small objects exchange in an area where there is a lot of drug dealing going on is likely a drug deal is something a lot more than a “hunch.”
Enough to constitute “probable cause”? That’s the legal question, if I understand it correctly, and I read the denial of cert as seven Justices saying, “Well, yeah.”
Me, I’d kind of like to know. See, I’ve got this friend who owes me twenty bucks, and he lives in a not-good neighborhood, and I’ve got some small objects (dummy rounds) that I owe him, and I’d really, really prefer not to be hauled off in ‘cuffs if it turns out to be more convenient to meet on a streetcorner . . .
While I linked to that VC post in the body of my post, I deliberately chose not to address the anonymous Philly ADA because his comment was quick and dirty, and brings up a number of issues with which I have trouble and would prefer not to address in such a sloppy statement.
As for your undigression, you misread the seven justices who voted against cert. They are saying no probable cause, as did the PA Supremes. Now here’s the step you may be missing from your concerns. If everything that Roberts recites is true, then it might well be sufficient to establish a reasonable suspicion that a crime is being committed, which would entitle do the officers to make a limited seizure for the purpose of ascertaining what’s going on.
The distinction is that probable cause is sufficient to arrest, not merely inquire. At the point where Roberts sees arrest as a no-brainer, they have no way of telling whether the guy is selling drugs or repaying his $18.75 debt (or a million other possible non-criminal scenarios). Does it smell like a drug deal to an experienced officer? Sure. But that’s the difference between PC and a hunch. One requires facts, while the other only requires a scent.
Getting back to my issue with Philly ADA, any cop with half a brain would have made the first buyer into the third or fourth, and added some interesting details involving glassines or furtive gestures or nervous behavior or reaching under a rock and removing a small, plastic object that appeared to be the type commonly used for the sale of crack, or whatever, and this case would never have made it beyond the trial court.
And as any New York City lawyer will tell you, every square inch of this city is a “high-crime area” when it comes to justifying a search/arrest. Just try to prove the cop wrong.
You’re right; I misread the other seven. They clearly said, “Well, nah.” They’re with you — at least for the first interaction, it’s just a “hunch”, not PC. (At least for now; as the CJ points out, other state Supreme Courts may have seen similar things differently. Curious guy that I am, I’d like to know exactly how my rights under the US Constitution differ, depending on which state I’m in.)
This worries me, though:
Assume, for the sake of argument, that the cop will never lie (so the message to the cops isn’t: go ahead and lie, but in a way you can’t get caught, and you can turn your hunches into legal PC without breaking a sweat, but just flushing your conscience) — but he won’t be immune from confirmation bias or slanted interpretation. Forget inventing previous buyers (he can simply wait for one or two, which is what the Philly ADA seems to be suggesting, assuming he’s not winking at testilying) or miraculously visible glassine envelopes — if the cop has good reason to think this was a drug buy, isn’t he awfully likely to see nervous behavior? And that reach into the pocket. Was it a “furtive gesture”? Or was it just cold out, or was the guy reaching for cigarettes?
So we get a situation where the right of folks to be free of unreasonable searches and seizures goes away if either a street cop is willing to lie or simply sees something as suspicious.
Which isn’t exactly much of a check on searches and seizures.
I think we’ve been down that road before, and I don’t like where it ends up.
There is one additional alternative. If cop jumps the gun, evidence gets suppessed and everybody goes home. Next time, cop waits patiently until he gets probable cause or, should PC not come, lives to bust somebody another day.
We keep forgetting, the worst thing that can happen if everybody plays by the rules is justice.
I had to re-read Roberts’ legal point a couple of times to be sure I wasn’t misunderstanding: He really wants to arrest people for drug dealing without any evidence that drugs are present. Not question, not investigate, not detain. Arrest.
I’m sure Officer Devlin’s predecessors just knew, without closer observation, that a bunch of coloreds in the white part of town were up to no good. And their predecessors knew that when the cow’s milk curdled and the horse came up lame, it meant the new woman in town was a witch.
Excellent blog.
I think something that looks like a drug deal (and what the CJ described could easily look like one, although I think his writing style in the opening suggests that quitting his day job wouldn’t be a great idea) is evidence that drugs are present. The question is whether it’s enough evidence to (from a legal standpoint, about which I know little enough that I’m confident in expressing an opinion) to create PC for an arrest.
With seven Justices saying, no, that’s not enough, it pretty clearly isn’t enough, by definition. (If it looks like a duck, walks like a duck, quacks like a duck, and the SCOTUS says that it’s a common loon, I guess you’d better not plan on having it with a nice cherry sauce.) In Pennsylvania, given the other circumstances. Or in Colorado, given similar circumstances. But less than that is apparently enough in New Jersey or Rhode Island, if Roberts’ summary doesn’t leave out key facts about those cases.
Waiting for the same thing — with the same central character — to happen again make it enough? That enough? Two more buys? Three? How about if the cop calls up a CI/snitch who has seven pending felonies, and says, “make a buy from this guy, and I’ll see what I can do”, and the snitch, goes over, hands over some money, and comes back with several glassine packets containing powder (which, by the way, he could have procured elsewhere. Tell a guy who is facing years in prison that the number gets cut in half and he just might be motivated to fib a bit).
Here’s, if not the thing, a thing: a decent cop in Devlin’s position is going to want to know what he needs in order to make a legitimate arrest. (A crooked cop in Devlin’s position is going to want to know what he needs to pretend to have seen in order to make an arrest appear legitimate.)
For this sort of thing, what are you going to tell him?
(“The War on Some Drugs is, at best, a waste of time and effort,” while true, doesn’t count.)
There’s a fairly easy way to think of whether there is sufficient evidence for probable cause. If you laid all your evidence on the table and none was refuted, would it be enough to sustain a conviction? Trying to assume the quantum of proof necessary by reading about one decision in another is a dangerous thing. If I were inclined to spend the time, I would read the root decisions. I’m not so inclined, but also not ready to accept CJ Roberts’ analysis, under the circumstances.
And your question about cops wanting to know the right answer hits a critical purpose to a Supreme Court decision: Tell people, both cops and civlians, where the line is drawn. This has been one of the greatest failings of the court in recent years, unclear decisions leaving everyone with no clue how to conduct themselves.
I understand that ending a stay in two weeks is very short by Supreme Court standards, and not stating why is not the usually proceedure. Aa a lawyer I hope you look into the matter of whether the Court is playing politics like it clearly was in the Rosenberg trial where the court was perposely trying to stir up anticommunisht anger by letting two innocent people die.
If by change you are unfimilar with the trial of the Rosenberg’s click on George Koval in Wikipidia not Ethel Rosenberg, because for some wierd reason the Rosenberg page doesn’t link forward to the Koval Page.
On another subject lawyers are everyone’s punching bags and what happened to Tony Jackson, Mumia’s lawyer, who once was know as a fighting lawyer for the dowun and out is truely McCob.
By the way I knew both Tony and Mumia abu Jamal and didn’t speak out publically in Tony’s defense until Mumia was off of death row.
Sincerely, RichardKanePA
Thank you for writing this. Having met Troy Davis and his family and written extensively about this case, I can say that Davis inspires more respect and love and has transformed the lives of many kids and adults who have come in contact with him, than the justices of the GA and US Supreme Court. The letters some High School kids have written to the Pope yesterday asking his help are on my site and they make more sense than those who make the rules in a deeply flawed judicial system.