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Was Freddie Gray’s Arrest Illegal?

November 7, 2016

A Brief Commentary on the Law of Civilian-Police Encounters

In the wake of the unsuccessful prosecution of six police officers in the death of Freddie Gray, one question surprisingly remains unresolved: was Gray’s arrest lawful? Many legal commentators predicted that the legality of the arrest (whether or not it was lawful) would play an important role in the trials of the officers, but the issue was never put before the judge or jury.

What led police to arrest Gray on April 12, 2015? It was 8:39 am and Gray was merely standing near the busy intersection of Mount Street and North Avenue in Baltimore. According to a complaint written by Baltimore City police officer Garrett Miller, Gray then made what turned out to be a fatal mistake: he “fled unprovoked upon noticing police presence.” After chasing Gray down, Miller found a knife in Gray’s front right pants pocket. Officer Miller formally charged Gray with possession of a switch blade knife, a crime carrying a penalty of up to one year in jail. Gray’s trial was set for May 22, 2015 in the District Court for Baltimore City. In his complaint, Officer Miller stated that during transport to the police station, Gray “suffered a medical emergency and was immediately transported to Shock Trauma via Medic.” As the world knows, Freddie Gray did not appear at his May 22nd trial date because on April 19th he died in the hospital from a severe spinal cord injury.

Baltimore City prosecutors publicly stated that the police had no authority to arrest Gray because the knife he was carrying was not actually a switchblade and was otherwise legal to possess in Maryland. Lawyers for the police officers said that the knife was prohibited under the Baltimore City Code and therefore Officer Miller had probable cause to arrest. Under Maryland law, certain types of knives may be carried on one’s person. Without examining the knife found on Gray, it’s impossible to know whether it falls into the legal or illegal category.

Had Freddie Gray not been injured in the back of that police wagon, what would have happened when he went to court to face charges of illegally possessing a switchblade? Anyone who regularly practices criminal defense in the District Court of Maryland knows that it’s very unlikely that any prosecutor would have conceded that Gray’s arrest was illegal. More often than not, the prosecutor sides with the police and will go to great lengths to argue that an arrest was lawful. Otherwise, they “lose” their case.

A properly prepared prosecutor would argue that the police had the right to chase and stop Gray when he ran after noticing the police. The U.S. Supreme Court said as much in the 2000 case of Illinois v. Wardlow.[1] In that case, William Wardlow fled upon seeing a caravan of police cars converge on an area of Chicago known for heavy narcotics trafficking. Police caught the man and found him in possession of a handgun. The Supreme Court found that the combination of Wardlow’s unprovoked flight while in a high crime area was enough to give the police reasonable suspicion that he was involved in criminal activity. That gave police the right stop Wardlow and frisk him for weapons. The frisk turned up a handgun, therefore Wardlow could be lawfully arrested. I suspect that if Freddie Gray had gone to trial on his charge of possession of a switchblade, Officer Miller’s testimony would have been very similar to the police testimony in William Wardlow’s trial.

An individual’s presence in a “high crime” area, standing alone, does not give police the right to stop and frisk the individual. But, as noted above, a neighborhood’s character as “high crime” is a factor in determining whether the police may lawfully detain a person. The sad truth is that people who live in a “high crime” neighborhood have to avoid making any sudden, evasive movements if they want to avoid giving police legal justification to stop and frisk them.

Had Freddie Gray gone to trial on his charge of possession of a switchblade, he would have had the opportunity, through his lawyer, to argue a motion to suppress which would have challenged the legality of his stop, frisk, and arrest.  Officer Miller would have testified and been cross-examined about all of the details that led him to arrest Gray on April 12, 2015. Without such testimony, it’s difficult to know how a judge would have ruled on Gray’s motion to suppress. The only thing we know for certain about Gray’s charge is the disposition entered in the case file on April 24, 2015: “abated by death.”

[1]  528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)