Baltimore-OfficersIn the process of writing about this case, I’ve briefly explained Terry v. Ohio (1968), but let’s have at it once again. The Supreme Court’s Terry decision is very important to understanding police work, and the kinds of powers we not only want police officers to have, but the powers we need them to have.

Police officers obviously have the power of arrest. An arrest occurs when a police officer significantly restricts a citizen’s freedom of movement, and a reasonable citizen would not believe they were free to go. An officer need not say: “you are under arrest, ” though as a field training officer, I always taught my trainees the seven magic words: “please,” “thank you,” and “you are under arrest.” It’s always best to avoid any misunderstandings.

In the Erik Scott case, Scott’s fiancé Samantha Sterner, was detained in a small security office, by a uniformed officer. She demanded, over and over again, to be allowed to go to the hospital to determine if Scott were dead, but the officer refused, continually blocking the only doorway with his body, and at one point, physically pushing her into a chair. He repeatedly told her that she was not under arrest, but also said she could not go. They held her for about three hours. Would any reasonable citizen, treated as Sterner was, have believed they were free to go, or would they believe they were under arrest?

The detectives giving that officer his orders later denied, under oath, detaining Sterner, claimed she was never under arrest and was free to go at any time. While there is no magic time limit in such cases, and even though the police eventually let her go, by any interpretation of law and common sense, the Las Vegas Police unlawfully arrested Samantha Sterner. No reasonable citizen in her position could have believed anything else.

For citizens interacting with police officers, there are obviously two states: not under arrest and clearly under arrest. However, is there anything between these two states, a gray area–no pun intended? Is there any need for an intermediate state?

Police officers, like anyone else, can approach any citizen and engage them in conversation. But what if that citizen doesn’t want to talk to the officer? They can simply walk away, and absent reasonable suspicion, the officer is powerless to stop them. This is where Terry v. Ohio comes into play.

What if that citizen doesn’t want to speak to an officer, and that officer, based on his experience and articulable observations, believes that person might be about to engage in criminal activity, or might be engaging in criminal activity? Can the officer stop and hold them? For how long? Can he use force, and if so, how much? Can the officer search them? To what degree? Can the officer force them to move? Why, and over what distance?

Unlike some court decisions, the Terry decision strikes a reasonable balance between individual liberty and public safety. As long as an officer has “reasonable suspicion,” which is generally understood to be facts and observations that would cause a reasonable police officer to believe criminal activity may be underway, or may be about to be underway, they may approach and briefly detain someone for two purposes: to identify them, and to determine if that suspicion is actually probable cause: facts and observations that would cause a reasonable police officer to believe that a crime had been committed, and a specific person committed it. Reasonable suspicion is grounds for brief detention and investigation. Probable cause is grounds for arrest.

Even an officer making a Terry stop and finding no probable cause for arrest, is likely to have prevented any number of crimes at that place and time, and for some time thereafter, because the person the officer checked out, and all of his friends and associates, knows the police can connect them to anything that happens around that place and time. They’re likely to go elsewhere and commit crimes later.

credit: nydailynews

credit: nydailynews

This is important; you’ll see why shortly: An officer making a Terry stop can use whatever force is reasonably necessary to make the stop. If a suspect runs, the officer can pursue and detain him. If he resists, the officer can use whatever force is reasonably necessary to overcome that resistance. The officer can also search the suspect for weapons, but that search can’t be too intrusive. It is limited to the outer clothing, or any place where the suspect could quickly obtain a weapon. If the officer, through touch, or obvious observation (the clear outline of a knife or gun against the fabric of a pocket, or the common pocket clip of a knife, etc.) find a weapon, or contraband that he can identify by those methods as contraband, they may generally be used against the suspect in court. An officer may also move the suspect any reasonable distance necessary, as many times as necessary, to ensure everyone’s safety.

Remember, the standard is what a reasonable officer would do or believe. If an officer moves a suspect a few miles, that might be a problem, but moving someone a few feet this way or that, no problem. If they held the suspect for an hour, that would be a problem. How long can someone be held on a Terry stop? Usually about 15 minutes, but with modern computerized databases, Terry stops commonly take less time. However, once probable cause is obtained, Terry no longer applies, and the rules and laws governing arrest come into play.

Fast forward to last week, and the continuing battle of motions in the ongoing trials of the officers charged in the Freddie Gray case. For this update, Officer Edward Nero, one of the three officers more or less directly involved in the initial pursuit and arrest of Gray. Remember that pretty much everything is on hold waiting for the decision of the Court of Appeals regarding Judge Barry Williams’ order that Officer William Porter be forced to testify in the trials of the remaining officers. It might also be useful to review Update 5: Probable Causeless, for a refresher on the prosecution’s theories.

There have been a number of motions, but one in particular is pivotal: a motion by Nero’s attorneys to preclude any mention of the knife found on Gray. The motion notes that it was officer Miller that noticed and found a knife in Gray’s pocket, and believed it to be illegal under Baltimore city code. From the motion: 

4. Based on the charging document filed against Officer Nero it is anticipated that the State may argue that there was no probable cause to arrest Mr. Gray because it was lawful for him to possess this weapon. The State has identified and expert witness, Mr. Sean Norris, the president of a high end retail cutlery shop in Frederick Maryland. It is anticipated that the State will attempt to officer Mr. Norris to present testimony regarding knife mechanics, knife history and knife sales.

Remember that the Prosecution, at first, argued that the officer’s arrest of Gray was false because the knife wasn’t illegal under Maryland State law. When it was pointed out, by this scruffy little blog among several others, that the charge against Gray regarding the knife was filed under Baltimore law, and that the knife was almost surely illegal under that law, the Prosecution began ignoring that aspect of its case, focusing instead on trying to claim that the arrest was somehow entirely illegal as if Terry–a fundamental law enforcement and prosecutorial tool–didn’t exist.

But what if the officers made a mistake and even under Baltimore law, the knife wasn’t illegal? As I’ve pointed out repeatedly, that’s irrelevant. Visit Andrew Branca’s recent article on that issue at Legal Insurrection for a review.  But first, follow along a bit longer:

 MD. Rule 5-402 states that ‘evidence that is not relevant is not admissible.” [skip]

Assuming arguendo that the knife in question is a lawful weapon, this fact is irrelevant to the determination of whether the arrest was supported by probable cause.

According to the Statement of Probable Cause, the State alleged that the arrest was illegal because the weapon recovered from Mr. Gray was lawful. The State has since changed its theory and is now alleging that the illegal arrest occurred prior to the recovery of the weapon. The State has now affirmatively asserted that ‘Mr. Gray was arrested prior to the discovery of the knife in his pocket, such that the legality of the knife is largely immaterial except to rebut any claims the Defendants may raise about their beliefs and the reasonableness of those beliefs.’ [skip]

The State’s theory of prosecution regarding the assault and one of the misconduct charges relies solely on an argument that the detention of Mr. Gray following the foot chase but before the recovery of the weapon was in fact an arrest requiring probable cause. Therefore the legality or illegality of the weapon has no relevance to this determination.


In other words, Nero’s attorneys are correctly pointing out that the Prosecution is arguing that both of their theories could be wrong, so the court should chose one to be right–it doesn’t really matter which–and roll with it, because hey, at least one of these cops has to be convicted of something! Whatever the officers did, regardless of whether it was right, is somehow wrong and they are guilty. It’s rather like this:

So OK, the officers had no reason to chase and stop Gray, and the knife they found wasn’t illegal anyway, and OK, so maybe they did have cause to catch him, and maybe it was legal, but even though Prosecutor Mosby’s husband, a City Councilman, asked the police, through Prosecutor Mosby, to intensively patrol that very corner where Gray saw Lt. Rice and immediately fled from him, and even though that very corner was a spot infamous for drug dealing, and even though Gray was a known dealer, who fled at the sight of the police, that’s no reason to chase him(!?), and after they caught him, they handcuffed him and kept him from running, and actually moved him a few feet this way or that, so there. They’re guilty.

This kind of reasoning wouldn’t survive a discussion in the lowest level law school criminal procedure class. Clearly, the brief chase and detention were entirely lawful under Terry. The officers were at that particular spot because the people of Baltimore, through two powerful elected representatives, wanted them to be there to suppress rampant drug dealing. A known drug dealer, fleeing, at the mere sight of an officer on a bicycle, at that spot and under those conditions is a textbook case of reasonable suspicion. The officer’s actions in catching, searching, restraining and ultimately, arresting, Gray are also an entirely textbook Terry stop becoming probable cause for arrest. There is no credible argument otherwise.

Because everything that happened, up until the moment Officer Miller, after discovering and examining the knife, believed he had probable cause for arrest, was fully covered by Terry, there was no false arrest. To argue otherwise is to ignore the existence of Terry and its unassailable place in American law for the last 47 years.

But what about the knife? Readers should take the link and refer to the motion, but briefly, the Prosecution appears to be arguing that even though the knife is a “spring-assisted knife,” and even though the relevant Baltimore Code section reads that no one shall “possess any knife with an automatic spring or other device for opening and/or closing the blade…,” the Prosecution is arguing that the knife is legal. This particular spring-assisted knife is some other kind of “spring-assisted knife,” not an illegal “spring-assisted knife,” you know, like the kind Gray didn’t have.

The best part is that most of the motion consists of attachments proving beyond any doubt or argument that:

18. Despite the fact that the State claims that a spring assisted knife is lawful, State’s Attorney Marilyn Mosby continues to prosecute people for the possession of a spring assisted knife….

That’s right: Mosby has prosecuted, and continues to prosecute, people for possession of precisely the same type of knife Gray was carrying, and under the same Baltimore code section.

This kind of legal thinking would have never gotten past the most junior assistant prosecutor in any prosecutor’s office known to me. Prosecutors don’t argue that the very weapons for which they are prosecuting, jailing and fining others are somehow magically lawful when it suits their political purposes. Not only does it destroy their credibility, it destroys the ability of the police to protect honest citizens and themselves.

The Baltimore Sun also reports on several related issues: 

They [Nero’s lawyers] also want to block prosecutors from using key evidence in the case, including citizen video of the arrest and the knife found on Gray. [skip]

Attorneys for Nero say any suggestion by prosecutors that Nero and the other officers lacked reasonable suspicion or probable cause to stop Gray, that the knife found on Gray was legal, or that police used excessive force would not be grounded in any legal reality, and should therefore not be raised as issues before jurors.

They also ask that prosecutors be barred from discussing the injuries Gray suffered after his arrest. They argue that none of the charges against Nero require ‘any showing of injury in order for the State to satisfy the elements of the offenses.

These arguments have the very great advantage of adhering to law, precedent, the rules of evidence, and to the facts of the case, not that such trifles matter to the Prosecutors.

Nero’s attorneys made the arguments in a series of motions filed this week. His case is set to go to trial Feb. 22 in Baltimore Circuit Court.

Nero is charged with second-degree assault, misconduct in office and reckless endangerment — all misdemeanors. [skip]

Police and witnesses have described the arresting officers using tactical maneuvers to restrain Gray. Cellphone video of the interaction showed Gray screaming in pain, and then his legs dangling beneath him as police took him to the van.

Prosecutors don’t contend that Gray was injured during his arrest. But they have said Nero and the other officers lacked the probable cause they needed to stop Gray, and detained him before ever noticing the switchblade knife for which he was arrested.

Translation: Gray was playing to the crowd of homeys watching his arrest. Even the Prosecution isn’t alleging that the arresting officers injured Gray. The “tactical maneuvers” were nothing more than cuffing Gray and gently holding him in place to keep him from struggling and running away.

In charging the officers, prosecutors initially suggested the knife was legal under state law. Police and attorneys for the officers have said the knife is illegal under the city code.

Prosecutors later changed their theory, suggesting the legality of the knife was moot because officers violated Gray’s rights before they discovered the knife.

Translation: Ooops. The damned knife is illegal, so now the Prosecution is arguing that stopping and arresting exactly the kind of drug dealer they specifically sent those officers to that very spot to suppress and arrest is going to get any officer foolish enough to do just that arrested and charged with multiple crimes.

In describing the assault charge in June, prosecutors wrote that Nero had caused ‘offensive physical contact with and physical harm to’ Gray, and that the contact ‘was the result of an intentional act’ and ‘not legally justified in that the Defendant used force to place Mr. Gray under arrest without probable cause.

Translation: See previous translation. And: let’s make up some stuff that will sound good in social justice circles.

Nero’s attorneys have said Nero and his fellow officers were within their rights to pursue Gray after he fled unprovoked from officers in a known drug area targeted for drug enforcement, and that Gray was detained legally and arrested legally after officers found the knife.

In their new motion to have the case dismissed, they argue there is no legal precedent anywhere in the country for charging an officer with assault based on a perceived lack of probable cause.

And in this too, they are correct.

Common sense dictates that officers would simply not make arrests if they were subject to criminal prosecution if it was later determined that probable cause did not exist,’ they wrote. ‘The long term established remedy for a Fourth Amendment Constitutional violation has always been suppression of the evidence. Therefore, the State has not demonstrated that a crime can even be committed under its theory of this case.

There is no rational argument against this point.  In fact, exactly this has been occurring–actually, not occurring–in Baltimore since the persecution of the six officers began.

They argue Nero and the other officers had legal authority and probable cause to stop Gray, and prosecutors should be barred from suggesting otherwise because their doing so would be “substantially more prejudicial than probative.’

They argue that, given the prosecution’s claim that Gray’s rights were violated before the knife was found, the legality of the knife is irrelevant to the case.

Again, quite so, though it will be interesting–and likely disgusting–to see what the Prosecution comes up with to try to muddy crystal clear legal waters.

Notice Gray's apparently uninjured neck

Notice Gray’s apparently uninjured neck

In terms of the videos from the scene, Nero’s attorneys argue that they do not show Gray’s initial detention or other parts of the arrest relevant to Nero’s charges, but do include ‘Mr. Gray screaming and hearsay statements from citizens in the community’ that should be withheld from the jury.

‘Mr. Gray’s screams, if out of frustration or to garner attention, are not probative and if admitted will merely inflame the emotions of the jury, thus increasing the prejudicial effect,’ they argued.

This too is well-established law. Video that does not show anything relevant to the charges is clearly inadmissible, and hearsay from uninvolved parties is inherently prejudicial. If the kind of “evidence” the Prosecution apparently wants to use in this case was given credence in the Michael Brown case, Officer Darren Wilson would be on death row instead of entirely vindicated.

They argued that the value of discussing Gray’s post-arrest injuries ‘is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury,’ and that any mention of excessive force in this case would ignore the established rights of police officers to use force to stop detainees, they argued in their new motion.

‘Police officers, as opposed to citizens, as necessitated by their duties, are permitted to utilize physical contact that is not consented to which would otherwise be an assault in the course of a lawful arrest,’ they wrote. ‘The standard against which police officers are judged is not that of a reasonable civilian in the same situation, but that of a reasonable police officer similarly situated.

As the Prosecution has argued that Gray’s injuries didn’t take place until at least the second stop of the van, long after Nero last set eyes on him, it’s difficult to imagine any legal reason to allow testimony about those injuries in this case. When Edward Nero last saw Freddie Gray, he was alive and well, though possibly still mugging for the crowd. I’m sure the defense attorneys are, like Don West and Mark O’Mara in the Zimmerman case, thinking themselves caught in The Twilight Zone, working an entirely backward case. They find themselves defending unquestionable facts of law that the Prosecution is trying to pretend don’t exist. Should the Prosecution prevail, defense attorneys will use the precedents they establish in this case to free innumerable future criminals. The Prosecution is arguing, in the pursuit of a political spectacle, against the very basic legal principles and tools they and the police need every day to protect lives and suppress crime. Here’s a perfect example:

Prosecutors, meanwhile, filed a motion this week seeking to block Nero’s defense from referencing things about Gray’s past — including his previous criminal record or previous encounters with law enforcement.

Such information could contribute to an officer’s reasonable and articulable suspicion of a detainee who flees from officers, experts have said, but the prosecution argues it would mislead jurors. They also said there is ‘no indication that Officer Nero even knew the identity of Mr. Gray’ at the time of Gray’s arrest, and that what he learned about Gray after the arrest ‘is irrelevant.

In other words, if the Prosecution wins even this small argument, the precedent could very well prevent them, in all future cases, from presenting evidence of an officer’s past knowledge of the criminals they arrest, of their records, their methods of operation, and their associations and tendencies. They’re risking that to win a misdemeanor trial. What’s most likely is that Officer Nero did have some knowledge of Gray and his past. Police officers talk about the criminals that run in their patrol areas all the time. It’s also likely that when Nero was being interviewed for this case, no one thought to ask him, certainly not in any detail, about his detailed past knowledge of Gray.

Final Thoughts:

Like William Porter, Edward Nero will almost certainly testify in his own defense. And like Porter, he will be a believable and convincing witness. As I’ve often written in this case, it remains possible that one or more of the officers is in some way culpable in this case. However, the Prosecution has yet to produce any actual evidence of such culpability. For the moment, Edward Nero seems to be nothing more than a police officer that helped two other officers catch a fleeing drug dealer, briefly and mildly restrain and handcuff him, and carry him to a transport van as he dramatically played to the crowd, a bit of street theater all too familiar to the officers, Gray, and the crowd.

We continue to have the bizarre spectacle of supposedly experienced, professional prosecutors, making arguments, and trying to establish precedents, that will, if successful, make it difficult or impossible to prosecute future criminals. Notice that I do not speak of the damage they are doing, every day, to public safety in Baltimore and elsewhere.

This is not a difficult case. If Officer Nero acted appropriately under Terry, and even the Prosecution’s probable cause statement analyzed in Update 5 inadvertently argues that he did, there can be no false arrest. An officer making a lawful arrest, cannot assault the person he is arresting, nor can he recklessly endanger them or falsely imprison them. Even if Officer Miller erred in identifying the knife as illegal, and again, the Prosecution’s own probable cause statement and its subsequent arguments and actions argue that he did not err, that too is irrelevant and constitutes no evidence whatever of law breaking on the part of Officer Nero.

I still can’t believe I have to write these articles. At one time in America, professional police officers and prosecutors actually understood things like Terry, and when knives were and were not illegal. No one argued about such obvious, elementary issues.

Baltimore is only a symptom of worse to come. Much worse.