Freddie Gray's knife and the Mosby standard of probable cause

One of the most telling points of Baltimore State’s attorney Marilyn J. Mosby’s case against the police officers who arrested and allegedly killed Freddie Gray was that the basis for the arrest, Gray’s possession of a concealed knife, was itself illegal.  Reliably, Washington Post columnist Eugene Robinson pointed this out in a recent column, asserting, “Freddie Gray never had a chance” because he was targeted by police and illegally arrested.  And indeed, if Gray’s arrest was illegal, the case against the Baltimore police gains substantial legal and emotional heft. 

But it is far from clear that Mosby’s assertion is even close to being true.  A detailed breakdown of the issue, including a copy of the arrest papers, is posted at Legal Insurrection and worth reading in full.  In summary, Gray was found in possession of a concealed knife that the police described in the arrest papers as a switchblade.  Possibly, the knife was not a switchblade, but rather a spring-assisted knife, which is legal under Maryland state law, assuming Gray wasn’t under probation or another legal restriction (we don’t know).  But local Baltimore statutes are less clear, banning knives with “automatic springs” which is a broader category than switchblades.   

Regardless, the undisputed facts are that Gray ran from the police when he saw them, was caught and properly frisked (Mosby did not claim that the pat-down was illegal), and a concealed knife with a spring assist was discovered concealed on his person.  This alone constituted probable cause for Gray’s arrest under any reasonable interpretation of federal or Maryland law.  It was not incumbent on the police to determine at the time of arrest that, beyond reasonable doubt, Gray was illegally in possession of a weapon.  They only had to determine, by the standards of reasonableness, that it was more likely than not the case – which it certainly was.  Their job was to secure the evidence and put it in the chain of custody, not play with it – which could be construed as tampering.  If they were wrong, they could assume that Gray would be released in due course, whether through a prosecutor dropping the charges or an acquittal at trial.  

Consider for example if the police had found a small clear plastic bag on containing a white power on Gray.  Ordinarily, the police making the arrest wouldn’t have to test the substance at the scene to determine if it is heroin, not baking soda.  Indeed, were that not the case, it’s likely that Mosby would have to throw out a large percentage of Baltimore’s drug arrests, since this is usually how such arrests occur.  One of many problems with her precipitous actions is that based on the standard she articulated in the Gray arrest, defense attorneys across the city can now claim that any such drug arrests lack probable cause.  By the Mosby standard, Baltimore police will need a forensics lab on the scene in order to make even the most minor drug arrest.  And by that same standard, pace Mr. Robinson, it was the officers who arrested Freddie Gray who didn’t stand a chance.

One of the most telling points of Baltimore State’s attorney Marilyn J. Mosby’s case against the police officers who arrested and allegedly killed Freddie Gray was that the basis for the arrest, Gray’s possession of a concealed knife, was itself illegal.  Reliably, Washington Post columnist Eugene Robinson pointed this out in a recent column, asserting, “Freddie Gray never had a chance” because he was targeted by police and illegally arrested.  And indeed, if Gray’s arrest was illegal, the case against the Baltimore police gains substantial legal and emotional heft. 

But it is far from clear that Mosby’s assertion is even close to being true.  A detailed breakdown of the issue, including a copy of the arrest papers, is posted at Legal Insurrection and worth reading in full.  In summary, Gray was found in possession of a concealed knife that the police described in the arrest papers as a switchblade.  Possibly, the knife was not a switchblade, but rather a spring-assisted knife, which is legal under Maryland state law, assuming Gray wasn’t under probation or another legal restriction (we don’t know).  But local Baltimore statutes are less clear, banning knives with “automatic springs” which is a broader category than switchblades.   

Regardless, the undisputed facts are that Gray ran from the police when he saw them, was caught and properly frisked (Mosby did not claim that the pat-down was illegal), and a concealed knife with a spring assist was discovered concealed on his person.  This alone constituted probable cause for Gray’s arrest under any reasonable interpretation of federal or Maryland law.  It was not incumbent on the police to determine at the time of arrest that, beyond reasonable doubt, Gray was illegally in possession of a weapon.  They only had to determine, by the standards of reasonableness, that it was more likely than not the case – which it certainly was.  Their job was to secure the evidence and put it in the chain of custody, not play with it – which could be construed as tampering.  If they were wrong, they could assume that Gray would be released in due course, whether through a prosecutor dropping the charges or an acquittal at trial.  

Consider for example if the police had found a small clear plastic bag on containing a white power on Gray.  Ordinarily, the police making the arrest wouldn’t have to test the substance at the scene to determine if it is heroin, not baking soda.  Indeed, were that not the case, it’s likely that Mosby would have to throw out a large percentage of Baltimore’s drug arrests, since this is usually how such arrests occur.  One of many problems with her precipitous actions is that based on the standard she articulated in the Gray arrest, defense attorneys across the city can now claim that any such drug arrests lack probable cause.  By the Mosby standard, Baltimore police will need a forensics lab on the scene in order to make even the most minor drug arrest.  And by that same standard, pace Mr. Robinson, it was the officers who arrested Freddie Gray who didn’t stand a chance.