United States v. Bailey, 2023 WL 4552589 (4th Cir. 2023)
Officers often speak the line—at least on television and in the movies, “I can’t make any promises; that’s up to the District Attorney, but I will say whether you cooperated or not. I’ll try to help you.” What happens when an officer makes a promise without involving the prosecutor?
Shortly after witnessing Manley Johnson leave Maurice Bailey’s home, an officer stopped Johnson. Following a drug detector dog sniff, the officer searched Johnson’s vehicle and found a 0.1 grams of cocaine base. The officer went to Bailey’s house and confronted him about the cocaine sale, telling Bailey to turn over any drugs still in his possession.
The appellate court held that if the officer did breach a promise not to arrest Bailey for either quantity of drugs in exchange for his cooperation, Bailey was entitled to petition the court to enforce that promise against the prosecution.
The officer told Bailey, “Whatever little bit of s— crack you got left in that house, put it in that chair. I’m going to take it and I’m going to leave, and same thing as last. Everything is still squared away, and we’ll talk. We’ll put something together, and that’s my word man-to-man.” Hearing the officer’s offer, Bailey gave him 0.7 grams of cocaine base. Bailey subsequently helped the officer locate and arrest a person with an outstanding warrant but did not help the officer in any other investigations.
The officer obtained two warrants for Bailey’s arrest, one for the 0.1 grams Bailey sold to Johnson, and the other for the 0.7 grams Bailey turned over to the officer shortly thereafter. Bailey asked the trial court to suppress the cocaine base, claiming his arrest constituted a breach of the promise that all would be “squared away.” The trial court denied the request to suppress the cocaine, reasoning that if Bailey were entitled to any relief, it could only be for cocaine obtained after the promise that all would be “squared away.” Before the officer made that promise, he already had independent probable cause for arrest based on Bailey’s sale of 0.1 grams of cocaine to Johnson.
The court of appeals overturned the trial court’s denial of Bailey’s motion to suppress, reversed his conviction and remanded for further proceedings. The appellate court held that if the officer did breach a promise not to arrest Bailey for either quantity of drugs in exchange for his cooperation, Bailey was entitled to petition the court to enforce that promise against the prosecution. Comparing the promise to not arrest to an agreement to not prosecute or for a plea bargain, the court held, “A police officer is not entitled to arbitrarily breach these agreements.”
