It's three-something in the morning, an ungodly hour by any definition, when my phone rings. It's not on silent. I'm not allowed to keep it on silent tonight, because tonight I'm on what older generations called "beeper duty." To my generation, it's being on call. I am a junior Assistant District Attorney for Metropolis, and that means I get to spend one week a month on call. For that week, when I get home from work, my phone is set to ring at maximum volume, and when it rings, I answer. No exceptions. Sometimes the voice on the other end of the line is a beat cop asking an inane question about some esoteric piece of criminal procedure because he doesn't want to screw up his bust. I try and tell myself that I like those calls, because at least that means the arrest won't get tossed by a judge in a month while me or one of my coworkers stands there helplessly and the cop glares daggers at me because somehow I should have waved my magic wand to un-fuck his fuck-up. Sometimes the voice is a detective, asking about an emergency warrant to be executed right the fuck now so I had better get the on-call judge up. Those calls are more exciting, but still fairly routine.
This time the voice identifies itself as Detective Smith.
"I see a guy with a wicker basket."
Those last two words give me a jolt that wakes me up better than ten cups of coffee could. Wicker basket. For the last three months Metropolis has been plagued by a serial killer. Infants wash up on the banks of the river in wicker baskets, drowned. The only thing the medical examiner can tell me of worth is that they're still alive when they go in the water. I almost threw up when I heard that. Is this guy him? Metropolis PD has a task force hunting the guy, but so far they've come up with absolutely nothing. Trying to calm my suddenly racing heartbeat, I run through the mental checklist I manage to dredge up.
"Are you plainclothes?"
"Yeah, but I've got my badge out."
"What's he doing?"
"He's walking down the street, he's heading towards the marina."
"Okay stop him. Ask him what he's doing."
What I don't say, but both of us understand, is the razor thin line we're walking. If the officer so much as pats him down without reasonable articulable suspicion (a technical legal term with decades of law developing it and ironing out edge cases) then anything that comes of the search is tainted. Inadmissible in court. Best case scenario, I manage to scramble and pull together enough other evidence to somehow, someway, still get a conviction. Worst case scenario, and far more likely, is that the public defender files a layup motion to suppress, all of my evidence gets tossed, and with it the case.
"He says he's going fishing."
"Press him!" I try to keep my voice low and professional, like my boss does when he's in court, but I can't help myself. There's the faintest edge of panic in my words. Fishing. Totally reasonable. Anyone could be out fishing. He wouldn't be the first man up early to try and get a jump on the fish.
"He just said he's going fishing again and he's started walking again."
"Ask him if you can see in the basket."
If only. If the guy gives Detective Smith consent to search the basket that's the ball game right there. Consent is the ultimate cure to the Fourth Amendment. There's no expectation of privacy in letting a cop search your bag. Anything the detective sees would be admissible evidence.
"He said no, he's almost at the end of the marina. He's only a few feet from his boat. He's going to get away, what do I do?"
"Search him."
It's a gut call. Maybe the wrong call. I'm still not sure if we have enough to search him, and almost certainly not reasonable suspicion that he's armed and dangerous to justify a Terry frisk. In my head I'm already marshaling the arguments I'm going to have to make in court to justify the search. Three in the morning is early, too early for fishing? Probably not. Wicker basket is good, wicker basket on the marina is better, but maybe there's exigent circumstances-
Over the phone I hear a loud thump, like the phone was dropped, the sounds of a scuffle, and then a shout. "GET ON THE GROUND! GET ON THE GROUND NOW!"
"Alright, well done Mr. Monkey! Not bad, not bad at all. You did almost everything right. You hit all the high notes of exceptions to the warrant requirement, and most importantly you made the call to search the basket. You didn't kill the baby."
The exercise is over. I've passed. This whole scenario has been a test. Round two of three interviews for an Assistant District Attorney position. Every fact here I was provided in a three minute summary before we launched into the exercise, or I discovered during it. My interviewer continues.
"The most important rule of what we do here at [Major City's] District Attorney's Office is Don't Kill the Baby. Anything bad happens as a result of that in the case, we'll have your back. But we do not, ever, kill the baby. You'd be surprised how many people get that wrong. It's something to do with law school. Before you go to law school, or you ask any Joe Sixpack on the street, he'll give you the same answer. Don't Kill the Baby. But you go to law school, you get so caught up in these theoretical ideas about the Fourth Amendment and privacy, and something changes. People start killing the baby. Everything else we can teach, but we need someone who will not kill the baby as a foundation to build on."
I smile and thank the interviewer as we wrap up.
It's been months since this interview, though I've recorded it here as accurately as I can recall. In that time my opinions on the Don't Kill the Baby doctrine have fluctuated time and again. Sometimes I think it's the clearest possible moral guideline. Don't Kill the Baby. How could any normal person disagree with that? Obviously you Don't Kill the Baby. What kind of monster lets the baby die? But then I think broader. Sure, Don't Kill the Baby when there's a Baby at risk. But where does this end? Does this mean Don't Kill the Baby, and it only applies when there is an actual, literal infant at risk? How often does that happen for the city to have an entire internal policy based around it? Does it really mean "fuck the Fourth Amendment" and we don't let "criminal scum" walk our streets unmolested? What about those criminal scum's rights?
“The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
I like freedom. I think it's pretty great. I don't think I like the idea of cops walking down the street, conducting warrantless searches without any kind of probable cause just because. But what if the cop is right. Do the ends justify the means? I don't think that officer had the right to search the wicker basket. There wasn't enough, not really. No reasonable articulable suspicion of the man being armed and dangerous to support a Terry stop and frisk, no exception to the warrant requirement at all that I can identify. Maybe, maybe exigent circumstances but that's a hard hurdle to clear. Ignoring state-level rules for the moment, exigent circumstances is poorly defined and instead is applied on a case-by-case basis which takes into account the "totality of the circumstances." Missouri v. McNeely, 569 U.S. 141, 149 (2013). Which excluding the few clearly delineated examples of exigent circumstances (hot pursuit, preventing destruction of evidence, rendering emergency assistance) in practice means "fuck it, whatever the court feels is right." But of course, the detective in the exercise did find a baby in the basket. Any judge in the country would find exigent circumstances. But of course, the court can't use the finding of the baby as logic to support exigent circumstances. That's a post hoc rationalization, and we don't do that.
I don't ask myself these questions as a matter of law, not really, despite turning them over and over in my head and trying to brute-force the law to fit the outcome. I ask them because somehow I've stumbled upon a moral quandary that I can't seem to logic my way out of. Don't Kill the Baby. But freedom is important. But exigent circumstances. But no exigent circumstances. But Don't Kill the Baby. Round-and-round I go, never with a satisfying conclusion in sight.
I didn't end up accepting this job. Not for reasons related to their Don't Kill the Baby policy, there were other factors that made taking the job unfeasible. But the exercise has lodged in my brain like a thorn under a saddle. I turn it over and over again, and never quite come to an answer I actually like. Maybe that's a good thing. Maybe we're not supposed to have an easy answer to this problem. Maybe the fact that it confuses and annoys and exasperates me is what it should be doing. Maybe I'm so over-educated I can't recognize a simple, boring, innocuous truth when it stares me in the face. Don't Kill the Baby.
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Notes -
In my experience, many criminal lawyers share your reaction to this kind of hypothetical: "We can't allow cops to trample important freedoms, no matter how many lives it saves!" The value of the hypothetical is its ability to elicit that response; it illustrates exactly how out-of-touch the field of criminal law has become. Forget the possibility that lives are at stake; let's focus on the "freedoms" at stake. In this hypothetical, all that's at stake is the freedom to refuse to show a cop what's in your covered basket.
Imagine a country just like the US, with a constitution just like the US Constitution, as interpreted by the US Supreme Court, with this sole exception: people walking around in public must show the contents of their pockets, handbags, briefcases, etc. if a cop orders them to (with or without any degree of articulable suspicion). The cops still need to follow the US rules before they can touch or seize anything from a person, or perform any more invasive search, or enter a private area like a home. Would that be "tyranny"?
I don't think so. The impact on the average law-abiding person would probably round to zero. Cops probably wouldn't even ask most of the time. Under Pennsylvania v. Mimms, cops can legally order you to get out of your car during any traffic stop, but that's never happened to me.
The only people who would realistically be impacted by this sort of rule would be habitual criminals, who would find it tremendously inconvenient. Street-level drug dealers would be at constant risk of discovery. Felons would have to leave their concealed weapons at home, no doubt greatly reducing the rate of opportunistic/impulsive violent crime. Smugglers, who currently can carry duffel bags full of contraband with near impunity, could no longer rely on the forbearance of law enforcement.
Under the current system, cops can't articulate the requisite "suspicion" or "probable cause" based on a person's race, their class, or their status as a felon/vagrant/deviant/obvious troublemaker, even when those facts would cause reasonably normal people to suspect that someone was up to no good. For one example: I'm amazed by the prevalence of face tattoos in mugshots, vs. among the general population. I guarantee that cops know to keep an eye on people with face and neck tattoos. But I'm also sure they hesitate to articulate "face tattoos" as part of the "probable cause" or "reasonable suspicion" they need to conduct a search, seizure, or frisk.
A rule freeing cops from having to articulate probable cause for certain kinds of minimally-intrusive searches would greatly increase the crime-fighting ability of law enforcement, at negligible cost to the law-abiding masses. Civilization needs functional law enforcement a hell of a lot more than it needs elaborate protection for the rights of "criminal scum" (or the whims of obstreperous civil libertarians).
Instead, we have created a huge legal infrastructure for the purpose of protecting criminals, and criminals alone, from "unreasonable" searches and seizures. (The exclusionary rule only protects you if the cops actually find evidence of a crime and try to prosecute you; if they invade your privacy and don't discover evidence of crime, the exclusionary rule doesn't help you at all!) Modern innovations in criminal law are almost entirely based on finding more and more arcane technicalities to secure the release of criminals who were caught red-handed and are indisputably guilty. And lawyers still feel conflicted about letting cops do their jobs. How did we get to this point?
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Do police/detectives normally have a hotline that they can call for immediate legal advice on a bust?
That's badass.
Anyway why isn't the answer:
"Ask him what's in the basket. Then search it. Based on what you find you can testify to the jury that you heard a baby cry, or that the suspect admitted there was a dead baby in there"
That's the quiet part. Are you just going to say it out loud, over an official phone call? Are those recorded for evidence?
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What?
The scenario is vague in one important aspect. Do the police have good reason to think there's a baby in there?
If they had good reason to think there's a baby in there, then they do have exigent circumstances.
If they don't have good reason to think there's a baby in there, then they shouldn't be doing the search. If there's a baby in there anyway, it's an accident that they have no way to predict.
For all that the OP says that we shouldn't be allowed to make post hoc rationalizations, that's exactly what the scenario is set up to do--it's trying to imply that finding the baby means that the hunch was justified. But if the hunch was actually justified, the search is legal, and if the hunch wasn't justified, they shouldn't be doing the search based on the chance that the unjustified hunch turns out to be true by pure luck. By being vague about which of these two scenarios it is, it invokes justified hunches to say that you're supposed to follow unjustified hunches.
If the scenario was "the police read some tea leaves, decide to search someone based on the result, and find a baby" you could ask the exact same questions: isn't this a moral quandry where freedom from unjustified searches is important, but if you ignore the tea leaves, you may end up killing a baby? But we know the answer to this: No, we don't search people based on reading tea leaves, because tea leaves find babies only by luck. Even though that means that reading tea leaves does, in fact, sometimes find babies.
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This is a gnarly interview. My respect for DAs just went way up.
Is this a standard type of interview (leet-code for DAs kind of thing)? Or just something that this particular jurisdiction does?
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Forgive me for deviating from the central point of your post, but I find this a more pressing question: what do people on-call do to not wake up by spam?
Google phones seem to be pretty good at filtering the spam from international phone numbers, but not as well from the domestic ones. Are apple phones better? Do, say, DAs on call use the AI screening?
In very serious orgs there's a smartphone app called PagerDuty that an operations center or monitoring system can raise alerts to that ignore your do not disturb/silent mode settings.
Google had something internally as well that was very similar.
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A question back: How much spam calls do you get for this to be a significant issue? I get one every few weeks, if not months. It's nothing like mail.
I get about 10 spam calls a day. I am not on call, and I have set my phone to only ring for my known contacts. My friend deals with kids and parents, so she must answer numbers she doesn't recognize (what if it's the kid's grandma coming to pick him up?), and she gets a bout a dozen spam calls per day as well. But at least she puts the phone on silent for the night. I'd imagine that getting woken up by spam is much more inconvenient than taking two seconds to recognize a spam call and hand up during the day.
You don’t get a lot of spam calls at night- those people work 8-5.
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I used priority contacts. I knew a call would only be coming from one of these X numbers, so I could set up my work iPhone to only make noise if it was one of them, and be in silent mode otherwise.
I do that too, but I am not on call. I imagine a DA has to be open to calls from unknown numbers, since those could be a police officer's personal phone.
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A guess: There's a specific work phone the number of which is shared only with those who have a good reason to call.
The issue here (if I understand correctly) isn't people from work calling for no good reason, it's "Jan from the tax relief department" calling the number to try to scam you. I get 6 or so of the latter type of calls every day, though thankfully not at night so they wouldn't wake me up.
Yeah, she works M-F 8-5.
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This is just simply not in the realm of things answerable by simple slogans. It's all about the details (alwayshasbeen.jpg).
I can't help but always circle back to the relatively uncontroversial example of the car salesman. If he tells you a car is "a great bargain", you don't just take him by his word; You look at the technical details of the car model, you take a look at the actual car right in front of you whether it shows signs of deterioration, repair or even manipulation, you ask around for the reputation of the salesman or the greater dealership he is part of. And you only buy if it looks like at least an OK deal based on the totality of the evidence.
You ought to do the same for any claim. "Temporary migrants" are only that if there is a mechanism to get rid of them, otherwise they're just migrants, likewise with asylum. "Developmental aid for [country/location]" is often, in practice, mostly free money for whoever is currently in power of that country. And more on topic, for the police and the DA, they absolutely love the justification of just protecting the innocent and helpless, a baby being about as archetypical as it gets. Do they do that? Sometimes yes, sometimes no.
That said, I actually mostly like the training exercise, at least as a very first test of character. It's clearly contrived (IANAL though), who uses a wicker basket for fishing? In the middle of the night? And it's just about looking into the basket, not a full-on house search or anything other more private. If you can't even muster the bravery for this, you're not fit for the job. It's about mindset; Police and DA should have thinking that is directed towards catching criminals while infringing on rights as little as possible, but not necessarily zero. Just looking into a basket is about as minor as it gets, compared to the severity of the possible crime and in consideration of the sketchy circumstances.
But you shouldn't consider this training a good reflection of real cases you're going to work on. They're probably going to be much more complicated, which I hope gets reflected in some later training.
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That is stupid test, made by people who think they are smarter than they are.
Ways to improve it - first instead of baby in the basket are drugs. A policy of - we save the baby and if the cost is letting a drug dealer go - well they are too stupid to take the warning and we will catch them anyway.
Second - the officer could just play some loud screeching noise and try to wake up the baby. Hear the baby cry and we are golden. Or he could kick the basket. Or he could just walk next to the person in the basket for as long as needed.
Third - the basket is the murder weapon. If the serial killer was called lumberjack harry killing his victims in central park - because he killed people with felling axe while wearing of those signature shirts, no court would say that patting down every recreational deforester in the area is infringing on their rights.
Possible murderer was getting onto a boat.
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As described, you acted in line with the incentives.
If it was the baby-killer, you save the baby and secure a conviction. If it was an innocent fisherman, there are no negative consequences (at least not any listed here. I'm sure that there are some IRL. right? right??) because there is no case to sabotage. The only negative effect I can see is if he had been committing a less-serious crime that would've been caught some other way, and you had stumbled into the evidence that would've convicted him.
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I am not a legal expert. I don't know the actual legal technicalities of "reasonable articulable suspicion". But at least taking a common sense definition of the words, "There is a serial killer drowning babies in wicker baskets, this man is on the marina with a wicker basket" is trivially "articulable", and seems eminently reasonable to me given the circumstances. Who uses wicker baskets? If the officer had no reason for suspicion then why did he call you in the first place? My understanding was that this was to prevent officers from searching people because "I dunno, he seemed kind of suspicious", not "I have a clear reason to suspect this guy in particular of a specific crime (and being the perpetrator of the same crime multiple times in the past) for a specific reason".
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From the outside, the purpose of the modern legal profession (but especially of legal “thinkers”) appears to be ignoring simple, boring, innocuous truths.
To use the example of the Fifth Amendment, America operated for 177 years without Miranda rights, and this was not considered a Fifth Amendment violation. This implies, to me, a simple, boring truth that our Fifth Amendment jurisprudence is unnecessarily overcomplicated.
Your Fourth Amendment concerns are probably suffering from being somewhere in the same ballpark. Forced on you by overcomplicated jurisprudence.
There exists a series of relatively well-known documentaries of the modern judicial system published in the 1970s, featuring Clint Eastwood.
The first one of these exists specifically to posit an answer to that question.
The second one of these exists specifically to refine, and partially refute, the answer previously given to that question.
Goddamn that first, uh, documentary is a banger.
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Having a conversation about an exercise like this seems like it would be an incredible insightful exercise in say an interview though. You get to have this meta conversation about freedom and rights and ethics and really gauge the values or lack of values in your candidate.
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Is ‘don’t kill the baby’ not obviously a dramatic shorthand for ‘don’t let procedure get in the way of the reason it’s instituted’?
It's more specific than that, surely? "The reason it's instituted" is a term that admits of a lot of interpretation. Why do searches require warrants? To protect people's privacy? To protect people full stop? To reduce the scope of arbitrary government action? To prevent tyranny? Almost any policy can be interpreted to have multiple reasons for its existence, and then each of those reasons can be defined narrowly, or so broadly as to enable almost anything.
I take "don't kill the baby" to be shorthand for "human life overrides all other concerns".
Put like that it's a principle that I see coming up in all sorts of other contexts. You probably heard it when learning to drive, for instance - you may break any road rule if it is necessary to do so to preserve human life. Most organisations have, whether implicit or explicit, an exception like that. Heck, religions have exceptions like that, where both Jewish and Islamic law may be violated if human life is at risk.
That said this doesn't resolve the issue in the scenario, which I interpret as a probabilistic one. It's possible that the man with the basket is just an innocent fisherman. The policeman and lawyer are making a judgement call, and one for which no explicit rule can be laid down. "Always search people who might be guilty" makes a mockery of the law; "never search people who might be guilty" means more drowned babies than we're probably comfortable with. They both need to show a practical wisdom, weighing the trade-off carefully and making a risky decision.
Maybe the solution is Junior Assistant District Attorneys who Don't Kill the Baby, but feel tortured enough about it that they won't start imagining fake babies about to be killed everywhere just to simplify their job or justify other non baby-killing related preferences.
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