It is illegal to possess contraband, such as narcotics or images of chi1d pornography. Recent news about the R. Kelly prosecution brings up a question that I occasionally hear: If it’s illegal to possess narcotics or chi1d pornography, how can cops and prosecutors legally possess it during investigations and prosecutions?
Of course, one answer is practical: It would be quite silly for the law to prohibit the police and prosecutors to possess contraband for law enforcement reasons. If that were the case, no such crimes could be prosecuted, because no one would be willing to investigate or prosecute the crimes.
Fair enough. But how about a legal answer? It seems there are two possibilities. First, perhaps the law is overbroad but we rely on prosecutorial discretion to make it more sensible in practice. Alternatively, perhaps there is some legal doctrine that excuses police and prosecutors from the contraband laws when possession is in the course of their official duties. If there is such a law, however, I confess I don’t know what it is.
Does anyone know the answer to this? Informed answers are much preferred to random speculation.
UPDATE: Marty’s comment suggests what seems to be the right answer, namely a canon of construction that criminal statutes do not apply to law enforcement officers acting in the course of their official duties if it would lead to absurd results. This canon was noted in the Nardone case in 1937; the Nardone case cites a 1921 California case, Balthasar v. Pacific Elec. Ry. Co, 202 P. 37 (Cal. 1921) that traces it back to Blackstone (not altogether convincingly, but that’s a bit beside the point). Very interesting.
ANOTHER UPDATE: The Nardone case also cites a 1920 Washington state case involving a sheriff speeding on a motorcycle to catch a man who stole a car. The sheriff who was speeding to catch the thief was himself charged with violating the speeding laws. The Washington Supreme Court ruled that the sheriff was not liable, relying heavily on a common sense policy argument:
That the enforcement of statutory or ordinance provision limiting the speed at which a motor-propelled vehicle shall be driven over a public highway against a peace officer would have a tendency to hamper him in the performance of his official duties can hardly be doubted. The case in hand affords an illustration. Here the felon was fleeing with a stolen automobile. Naturally he would pay but little regard to the minor offense of exceeding the speed limit. And, if the sheriff must confine himself to that limit, pursuit in the manner adopted would have been useless, since the felon could not have been overtaken. The rule contended for would also hinder the public peace officer in enforcing the statutes regulating traffic upon the state highways. The statutes contain somewhat stringent regulations as to the speed a motor-propelled vehicle may be driven over them, and contain no exception in favor of the peace officers whose duty it is made to enforce them. If these officers may not pursue and overtake one violating the regulations without themselves becoming amenable to the penalties imposed by them, the old remedy of hue and cry is not available in such instances, and many offenders who are now brought to answer will escape.
State v. Gorham, 110 Wash. 330 (1920). A very interesting case, isn’t it?
At least some such statutes specifically exempt such persons. For example, Massachusetts’ statute barring possession of an “infernal machine” (e.g., a time bomb) provides:
“Whoever, other than a police or other law enforcement officer acting in the discharge of his official duties, has in his possession or under his control an infernal machine or a similar instrument, contrivance or device shall be punished by imprisonment in the state prison for not more than ten years or in jail for not more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment, and the said machine, instrument, contrivance or device shall be forfeited to the commonwealth.”
Similarly, the Commonwealth’s child pornography statute provides:
“The provisions of this section shall not apply to a law enforcement officer, licensed physician, licensed psychologist, attorney or officer of the court who is in possession of such materials in the lawful performance of his official duty. Nor shall the provisions of this section apply to an employee of a bona fide enterprise, the purpose of which enterprise is to filter or otherwise restrict access to such materials, who possesses examples of computer depictions of such material for the purposes of furthering the legitimate goals of such enterprise.”
Two thoughts: (1) A “common law” defense available for officials who have physical custody of contraband.
(2) As the preceding suggests, a distinction between “possession” (for “personal” purposes — the scare quotes because I’m sure that corporations can be liable for possessing contraband) and mere physical custody. My guess is that, if one tried to work this distinction out to deal with various problem cases, it would end up indistinguishable from (1).
Orin: I assume it’s the basic Nardone doctrine, see 302 U.S. 379, 383-84, which provides that general term such as “person” should not be construed to include government actors acting in official law-enforcement capacity where that would “deprive the sovereign of a recognized or established prerogative title or interest” or would “work obvious absurdity.” The classic example is the high-speed chase violation of a speed limit.
Marty is right in practice, but in the very old days, absent a non obstante clause in a statute defining a crime, the conduct constituting the crime could not lawfully be committed by law enforcement officers… (at least according to my former partner Milton Hirsch who believes that Congress should still have to include these clauses if Congress wants to exempt the police from prosecution).
I think this poses some interesting issues.
Alright let’s suppose that the Nardone doctrine prevents these laws from being applied against LEOs in the commission of their duties. Now what constitutes commission of their duties?
Suppose a prosecutor brings home some copies of the offending child porn the day before the trial to help practice for court. Presumably he isn’t risking conviction under this doctrine. What if he has prepared his case but decides to look at the photos one last time to remind himself how important the job he is doing is, i.e., to feel good about himself for putting away people who posses child porn. Now he is viewing the materials solely for personal enjoyment (s o he can feel good about himself) so does this immediately make him vulnerable to prosecution for possession?
I suspect not, after all the laws bans possession not viewing and he is possessing them pursuant to his official duties. However, this leads to to the interesting result that if in the course of your job as a prosecutor you frequently bring home child porn to practice for court you could also be masturbating to that porn or even showing it to friends for titillative purposes and you couldn’t be convicted under the child porn possession statues.
Did I go wrong somewhere in this analysis or is this truly the conclusion? The only other alternative seems to be a very fuzzy and troublesome distinction between morally acceptable enjoyment of evidence and morally unacceptable enjoyment.
Still even if it seems kinda weird to allow prosecutors to do the same thing they are putting people in jail for from a public policy perspective this rule wouldn’t be too problematic. Unlike the offenders the prosecutor’s sexual jollies do not encourage the production of more such porn.
David observes correctly: many statutes have _explicit_ provisions exempting officers from the provisions while peforming their official duties. Therefore there is at least a structural argument that suggests that omitting those exemptions is meaningful.
On another level though, I think there is something unique about the examples given so far: all the supposed crimes are crimes against the state alone. Possession is a victimless crime; speeding is victimless crime, etc.
Conversely criminal tresspass (in California) contains an explicit provision exempting the police acting in the course of their duties.
These sorts of ‘crimes against the state’ really are in a different class that is
1) innately suspect
2) easy for the executive to overlook
e.g., the normal pace of traffic routinely violates the notion of a ‘speed limit’
In my opinion, these are really just applications of the necessity defense. You can invoke necessity as an affirmative defense to speeding if your wife is giving birth in back seat. A cop speeding in pursuit of a stolen car can invoke the same defense.
The argument is a bit hazier with respect to things like drug possesion pursuant to sting operations but I think you can still see that, at the root, it’s a necessity argument. Even civilians have the “right” to possess illegal drugs in certain circumstances. Suppose, for example, while passing through a park where a large number of children are playing, you run across a stash of, say, crystal meth that someone has dropped. It may well be permissible for you to take possesion of those drugs and remove them to a place of safety before notifying the police to come and take them away.
On an unrelated note, will you be blogging about the DC Circuit CALEA decision?
The critical common element of these crimes, though, isn’t so much that they’re victimless but that they all have no mens rea element, right? That’s what creates the weird little trap that law enforcement officers would otherwise get stuck in.
Orin–You don’t have to publish this part, but I was tortured by this question a few years ago when I was advising a TV station client who wanted to run an expose on college students using drugs. The producers’ idea for the story had the reporters actually possessing the drugs (I forget which one, methamphetamines or something). I advised them that they’d better not, or should get pretty clear permission from the local and federal authorities before they did. Anyway, in thinking about whether they could run the story the way they wanted to, the cop-in-possession-of-cocaine question occurred to me, and I couldn’t get anybody at my law firm to help me really wrestle with the answer, as it was beyond the client’s question. “It would be absurd.” Though it turns out that *was* the answer. It just sounds a lot better when the Supreme Court says it.
A fun, and interesting, issue!
One thing I’m wondering … this issue is in part a by-product of federalism, isn’t it? After all, if there were only one sovereign, wouldn’t the executive’s discretion not to charge, e.g., a policeman in hot pursuit of a suspect, do nearly all the job of limiting the statute to people other than law enforcement folk acting in the regular course of their enforcement duties? With multiple sovereigns, and thus multiple executives, perhaps there can be more frequent disagreement about whether to limit a statute in this way and, if so, under what circumstances.
And on that enforcement discretion point, the issue also highlights that the executive works with an absurdity doctrine of its own. Perhaps, in fact, the judicial absurdity doctrine is a valuable check on the executive’s law enforcement decisions (at least, the decisions to engage in justiciable enforcement).
Anyway … wonderful food for thought.
The State v. Gorham case reminds me of the classic Andy Griffith episode where Barney Fife gives Gomer Pyle a ticket for some trivial infraction, and Gomer then catches him doing an illegal U-turn or something, and runs around following Barney yelling, “Citizen’s a-rrest! Citizen’s a-rrest!”
I don’t think Paul Allen’s suggestion that the examples given are all “victimless” works. My sister was killed as a result of a high-speed police chase. If they’d let the criminal go, she’d be alive. I agree with the result that police speeding ought not violate criminal law, but I do not think that victimlessness explains the result.
Similarly, a 2000 decision by the Oregon Supreme Court, In Re Gatti, held that *all* undercover operations, even by federal agents, were verboten! In 2000, the OR S. Ct., which also has the final word on ethical standards, strictly interpreted state bar guidelines that dealt with deception on the part of attorneys and extended them to cover government lawyers as well. Only after the DOJ sued the Oregon Bar in 2001 did the Court accept a new bar rule allowing prosecutors to go undercover for lawful purposes. It was quite the party for crim defense attorneys until then….
I’m sure we all find it highly unlikely that a police officer or prosecutor would be charged with possessing contraband in the course of official duties, for the reasons everyone’s stated. But it’s not unheard of for defense attorneys to be charged as accessories or for destroying evidence. I think it’s a much more interesting question of when defense attorneys can take possession of contraband or other evidence, and what they’re allowed to do with it, even if they say they’re possessing it as an “officer of the court who is in possession of such materials in the lawful performance of his official duty,” to quote the statute mentioned above.
“I think it’s a much more interesting question of when defense attorneys can take possession of contraband or other evidence, and what they’re allowed to do with it”
This is well-trodden territory from the perspective of legal ethics. As to what you’re allowed to do with it, the answer is “not much,” even after the fact.
A friend of mine, who works as a criminal appellate attorney in a public defender’s office, once asked for the exhibits from a trial to be sent over. Before doing this, the clerk is supposed to remove any contraband or weapons.
Well, in this case, the clerk didn’t. My friend got this big envelope from the clerk which he dumped on his desk. Right on top, was a baggy of heroin. Oops.
He was advised by multiple sources, including the DA’s office, not to touch it, not even to put it back in the envelope. It lay, untouched, in the middle of his desk for the better part of a day. After considerable consultation, a police officer and the clerk of the court arrived to take possession and, finally, removed it from my friend’s desk.
There was no question of tampering with evidence here and it’s pretty unlikely he would have been charged for putting it back in the envelope. But the fact remains that, had he taken possession of it, even for the unimpeachable motive of getting it off of his desk so he could get back to work, he would have, at least technically, committed a crime.
“Possession is a victimless crime; speeding is victimless crime, etc.”
While an interesting theory, the decision in Osborne v. Ohio, 495 U.S. 103 (1990) undercuts it, because in that case SCOTUS concluded that mere possession of child pornography continually re-victimizes the children depicted in it and that was why it could be criminalized (unlike possession of obscenity).