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 -
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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