Evil, But Not Criminal

Over at the Volokh Conspiracy, Orin Kerr writes about one of those cases where the law doesn’t really catch up with the wickedness of the world.

It involves a fact pattern straight out of a Hollywood movie. A group of drug enforcement officers go about their usual routine – investigate tips of drug activity, make controlled buys of drugs from dealers, arrest them, etc. Everything is on the up and up, with one exception. Instead of sending the dealers into the criminal justice system, the cops let them go. Then the cops take the drugs they seized from the dealers, sell them, and pocket the cash for themselves.

Now, surely the cops committed a crime, right? Well, yeah, but which one? How about violation of the dealers’ civil rights (their Fourth Amendment right against unreasonable searches and seizures, in this case) under color of law, pursuant to 18 USC 242? The Sixth Circuit said, “yes” and affirmed convictions (and life plus 255 year sentence) under that statute. Kerr makes a pretty compelling argument that the Sixth Circuit got it wrong.

The problem that Kerr correctly identifies is a long line of Supreme Court cases interpreting the Fourth Amendment holding that the proper way to analyze those claims is by using an objective, rather than subjective, approach. The only issue is whether there was probable cause to search/arrest, not whether the cop doing the searching/arresting for some other reason.

It’s an outgrowth of a case called Whren, in which a motorist argued that a cop violated the Fourth Amendment by pulling him over because he was black, rather than because he committed a minor traffic violation. The Supreme Court wouldn’t bite and held that as long as there was a legit basis to make the stop, it doesn’t matter if the cop had an ulterior motive in making it. One the one hand, that holding makes sense – to hold otherwise would require some real mind reading on the part of courts. On the other hand, it’s pretty much given cops carte blanche to stop folks for any reason they want, as long as they can gin up some objective “facts” to support it.

At any rate, as Kerr points out, under Whren and subsequent cases, so long as the cops in this case had probable cause when they stopped and searched these dealers (everybody agrees that they did), there was no violation of a “clearly established right.” You have no right to be free from reasonable searches and seizures, after all. That the cops never had any intention on following through with the normal procedure afterwards is irrelevant.

The Sixth Circuit gets around Whren two ways, although the meat off their analysis is that the defendant’s conduct was “thoroughly and objectively illegal from start to finish.” Whren doesn’t apply because the cops weren’t acting as cops (“bona fide law enforcement purposes”), they were acting as criminals. The Sixth Circuit also argues that Whren was all about excluding otherwise valid evidence in a criminal trial, and thus was distinguishable from what went on here.

Kerr isn’t convinced and I’m not sure I am either. He notes that Whren doesn’t mention “bona fide law enforcement purposes” nor really provide any support for that qualification on Fourth Amendment analyses. However, the Fourth Circuit relied on a similar rationale in a case decided last year, although in a very different context. In US v. Taylor (click here for a fuller discussion), the court held that an officer who entered a home while trying to locate the parent of a lost child (and, in the course of doing so, found contraband) didn’t violate the Fourth Amendment. Along the way, it noted that a warrant was not required because the officer was not involved in a law enforcement investigation when he entered the house. In other words, he wasn’t acting for “bona fide law enforcement purposes.”

Obviously, the Fourth Circuit isn’t the Supreme Court and Taylor is very different from the case Kerr is discussing. However, it does show that the Sixth Circuit might not be as far out on a limb as Kerr makes it out to be.

Although this appears to be a case were the court is attempting to ensure that crooked cops don’t get away, the fact is there are lots of other crimes for which these guys were convicted. Among others, there’s garden variety drug trafficking. There’s no need to stretch the law to cover every evil thing these guys did. The garden variety tools are just as effective. Just ask Al Capone.