Judge Cites Police Abuse and Corruption, Throws Out Seized Drug Evidence and Confession, Incites Controversy About the Exclusionary Rule

IN THE COURTS March 1996

Police brutality and corruption are so commonplace in some New York neighborhoods that it is natural for people to flee from police, a U.S. District Judge ruled, throwing out drug evidence seized in a search prompted when four men ran away from police after putting packages in the trunk of a car (U.S. v. Bayless, No. 95-CR-533HB, 1996WL23150 (S.D.N.Y. 1996)).

In the early hours of April 21, 1995, police observed four men putting two duffel bags into the trunk of a rental car with Michigan plates. When the men saw the police officers, they ran away in different directions. The police officers testified that running away from the officers, in addition to the involvement of an out-of-state rental car, constituted enough "suspicion" to search the car for drugs. The search yielded 34 kilograms of cocaine and 2 kilograms of heroin. When police questioned the driver of the car, Carol Bayless, she said she had made at least 20 round-trips from Michigan to New York since 1991 to ferry drugs.

U.S. District Judge Harold Baer, Jr. ruled on January 24 that police brutality and corruption are so prevalent in some neighborhoods it is natural for people to run away when they see police. "Residents in this neighborhood tended to regard police officers as corrupt, abusive, and violent," Baer ruled. "Had the men not run when the cops began to stare at them, it would have been unusual." Because he ruled that the search was unreasonable, Baer threw out the 36 kilograms of drugs and the videotaped confession.

Judge Baer was appointed to the bench by President Clinton and confirmed by the Senate by unanimous voice vote in 1994. He served on the Mollen Commission in 1993 and 1994, uncovering widespread corruption in the New York Police Department. Baer also served as the executive director of the New York Police Department Civilian Complaint Review Board. He had been elected to the State Supreme Court in 1982, but quit in 1992 after complaining of an overburdened caseload. "It is impossible with these conditions for a judge who strives to be conscientious to provide the public with the quality of justice that is their right," he said.

His decision in the Bayless case was criticized by top political leaders in New York. "I would suggest his experience in the Mollen investigation has colored his ability to make objective opinions," New York City Police Commissioner William J. Bratton said. "I would strongly suggest he remove himself from any further actions involving police." Bratton added that Baer was "living in a fantasy land. These are foolish statements from a very learned jurist."

Mayor Rudolph W. Giuliani said that although he is a friend of Baer's, he finds the decision "very, very disturbing." Giuliani worked under Baer when the now-judge was the head of the criminal division of the U.S. Attorney's office in Manhattan.

"What's happening in upper Manhattan is a lot of police officers are being cowboys and they are doing whatever they want," said Bayless' lawyer Ramon W. Pagan. "There are very few judges willing to say, 'We do not believe your stories.' But this judge had the courage to say that." Bayless had faced 10 years to life in prison if convicted of the charges.

After the ruling, Judge Baer did hear arguments to reconsider, but he indicated it is unlikely he would change his decision. "While I consider it a rather juvenile project to engage in at this juncture, I don't have a problem in letting them re-argue," he said.

[Sources for this story include: Don Van Natta, Jr., "Seized Drugs Are Ruled Out As Evidence," New York Times, January 25, 1996, p. B1; Don Van Natta, Jr., "Judge Belittles Bid to Reverse a Drug Ruling," New York Times, February 3, 1996, p. 25; Don Van Natta, Jr., "Judge Finds Wit Tested by Criticism," New York Times, February 7, 1996, p. B1; Clifford Krauss, "Giuliani and Bratton Assail U.S. Judge's Ruling in Drug Case," New York Times, January 27, 1996, p. 25; "New York Drug Ruling Stirs Debate on Search and Seizure," Drug Enforcement Report, February 8, 1996, p. 5; Nationline, "Judge's Corruption Comment Angers New York Officials, USA Today, January 26, 1996, p. 3A; Sue Rubinowitz, Maria Alvarez, and Al Guart, "Bratton Rips 'Crazy' Judge for Drug Ruling," New York Post, January 26, 1996, p. 7; "Federal Judge Says its [sic] OK to Run From Police," Drug Policy Report, January 1996, p. 7.]