Supreme Court Dispatches

Crackseat Driver

The Supreme Court takes on collective punishment.

You would think the following scene occurs every day: Cops pull over a speeding vehicle and search for drugs. Crack is found. All three passengers insist the drugs are not theirs. So the cops arrest them all. The constitutional dispute today is whether the cops had probable cause to arrest everybody, or just the driver, or just the guy next to the wad of bills in the glove compartment, or just the guy in the back seat with the crack. All of which is interesting. But even more interesting is that this is a case of “first impression” for the high court—meaning no one has brought this kind of challenge before. Apparently, in every other car ever stopped, someone has cheerfully admitted to owning the drugs.

Joseph Pringle made several mistakes on Aug. 7, 1999. One was being the passenger in a car with a driver who consented to a police search. Another was hiding the big wad of $763 in cash in the glove box of that car—where the license and registration lived. Another was hiding the five baggies of crack cocaine in the back seat, cleverly jammed behind the armrest. Another was later confessing at the police station that yes, the drugs were his and that he was hoping to trade them for sex at a party (I always find that “Nice dress” or “Great party, huh?” works OK, too).

At his suppression hearing, Pringle argued that even though he’d confessed to everything, the cops should not have been allowed to arrest him in the first place because under the Fourth Amendment they did not have sufficiently particularized suspicion that the drugs were his. The Maryland Court of Appeals agreed with him, holding 4-3 that since Pringle was in the front passenger seat and the drugs were stashed in the rear armrest, there was no probable cause to arrest him. The state of Maryland appealed.

Gary E. Bair argues for Maryland this morning, and Bair seems to believe that the state has probable cause to arrest everyone in a drug-mobile because it’s always a reasonable assumption that they all know about the drugs. Bair apparently lives in the Land That Knows No Carpools. And he thus spends most of his time this morning resisting the planes, trains, and automobiles hypotheticals put forth by the justices.

What if the drugs had been found closer to the driver, rather than in the back seat, asks Sandra Day O’Connor. Could all three passengers still be arrested? Yes, says Bair, because the car is a common area. What if the drugs were found in the trunk, asks Ruth Bader Ginsburg. Well, says Bair, if there were a “large quantity of drugs in the trunk, or a dead body in the trunk …”; Ginsburg reminds him that this is her hypo and there is just a Ziploc bag in the trunk, not a dead body.

Then it’s O’Connor’s turn with the innocent-grandma hypo: “What if it’s a high-crime area and some mother gets a ride from her son and doesn’t know he’s involved with drugs?” Can she be arrested? “Supposing it’s the middle of the day,” she adds. “And she’s going to the grocery store?” Bair can’t quite make himself say “Lock the old drug-mom up.” So he mumbles something about a “totality of the circumstances test.”

Justice John Paul Stevens has a hypo, too. What if there were four passengers in the car instead of three? No different says Bair. “What if there were six?” asks Stevens. Same. Stevens, undaunted: “What if it’s a minivan and there are eight people?” he asks. Lock ‘em up. Stevens takes a breather while Ginsburg takes over: “What if it had been a bus?”

Bair seems ready to concede that he would not seek to arrest all the passengers on a bus just because someone had drugs. Prompting Antonin Scalia to enter the bidding war to ask if the result would be different if it were a public bus or a charter bus. He appears to be asking this question purely for recreational purposes.

Anthony Kennedy wonders whether the police, upon finding a dead body and two possible killers, each claiming the other did it, could arrest them both. Bair, who couldn’t get Ginsburg on board with his dead body in the trunk hypo, appears relieved that the corpses are back. He says both potential killers could be subject to arrest.

Stevens then notes that there are three suspects here—not two. So it’s not as if there’s a 50 percent chance that one guy is the criminal. There’s only a 33.3 percent chance. Can a mere 33.3 percent likelihood of criminality constitute probable cause? Bair insists you cannot quantify probable cause. Stevens is unperturbed. So what if there are four people and each is only 25 percent likely to be the criminal?

And what if there were 300 people on a 747 and one of them was purple?

It’s a long morning.

David Souter jumps in the game: “What if it were undisputed that one of the three men were a hitchhiker?” he asks. Bair wonders how this fact could be undisputed. Souter retorts that that’s “the wonderful thing about being in the Supreme Court.” You get to make up the hypos.

Then Stevens is back, raising Souter’s hypo and calling. “What if it was a driver and two hitchhikers?” Bair says he has two answers. His first answer is nonresponsive, causing Stevens to ask for the other.

“I assume his two answers were ‘yes,’ and ‘no,’ ” chuckles Scalia.

Sri Srinivasan has 10 minutes to argue the case for the U.S. solicitor general’s office. I know and love Sri from law school, so I can only say that he tries to be reasonable, but the justices are smelling hypo-blood today.

First O’Connor (for whom he once clerked) asks whether he’s not seeking a broad new rule that probable cause exists to arrest all occupants of a car anytime drugs are found. When Srinivasan says no, he’s just asking for a totality of the circumstance test, Kennedy reads to him from the government’s brief where they ask for a broad new rule inferring that all occupants of the car are aware of the drugs.

O’Connor, who’s already done the driving-innocent-grandmother-to-church hypo, now grinds out the corollary: “What if there’s a young child in the car, and it’s the middle of the day, and he’s dropping the child off at school?” Should the child be dragged off to juvenile hall? This drug dealer’s got a helluva “to do” list: “Take mom to grocery store. Drop Billy off at school. Trade drugs for sex at party. Pick up dry cleaning.”

Ginsburg points out that there are “two innocent people locked up in jail” using Srinivasan’s inference of guilt rule. To which he replies that this is the cost of enforcing the law.

Nancy S. Forster represents Pringle. She too resists every hypo the justices throw at her. She also resists the facts of the case as set forth by the court of appeals. She seems to do so out of the misguided notion that her client is a great guy. So when she starts to tell the court that there was absolutely no evidence on which to suspect Pringle of wrongdoing, O’Connor almost explodes: There are three people driving around in a car at 3:30 a.m., in a high-crime neighborhood, in a sedan, there are drugs in the car and money in the glove compartment, she sputters.

Forster interrupts. It was actually 3:16 a.m. Definitely worth correcting your swing vote over that. Also, it was a residential area. “And” she adds, “anyone with children that age knows that on Saturday night the evening doesn’t even begin until 10 or 11 …”

Which causes the chief justice to nearly explode: “We don’t usually refer to ‘children’ as being in their 20s.”

Even Souter doesn’t appear to feel too much sympathy for these “children.” “There are three people in a small car, with commercial quantities of drugs, the inference is that someone was dealing drugs.” Forster rejects the contention that five vials of crack are necessarily for commercial and not personal use. What about the $763? snaps Souter. Well, Forster disputes that the amount of cash was $763. The chief justice and Souter point out that a large wad of bills in the glove box is suspicious, no matter what the amount. Forster disputes that great wads of cash are suspicious.

“Do you have a roll of bills exposed in your glove compartment?” asks Souter, exasperated.

“At times I do,” says Forster (for those $200 tolls on I-95?).

“You’d better be careful,” says Souter. Forster then manages to alienate her last friend on the bench when Ginsburg asks her which of the three people in the car could have been properly arrested under the circumstances.

“Arrest Mr. Partlow, the driver of the car,” Forster says. It is reasonable to impute that he has knowledge and control of what’s in the car. Ginsberg asks if anyone else could be arrested. Forster, going for broke, suggests that the guy in the back seat could maybe be arrested since he was closest to the drugs.

Ginsberg is dumbfounded. “So maybe the driver, and maybe the backseat occupant. But not the one who in fact committed the crime?”

On and on it goes, with Forster more or less asking the court to adopt a per se rule that everyone on the planet should be arrested for drug possession, except her client, and Bair essentially asking for a per se rule that everyone on the planet can be arrested for drug possession, since it would be easier than actually investigating a crime. The justices don’t seem all that impressed by either position. But until they actually decide this case, my (purely recreational) legal advice to you is as follows: Don’t carpool to work with crack dealers, not even the kind with elderly mothers and preschoolers in the back seat.