Potential Police Promise Not to Arrest Defendant Can Be Enforced

US v. Bailey: A police officer, Page, stopped someone as they drove away from Bailey’s home, recovering 0.1 gram of crack cocaine. Page returned to Bailey’s home and talked to him. During that conversation, Page (allegedly) made representations to Bailey about helping him find work and that if Bailey handed over any additional drugs “everything is still squared away” between them. Bailey produced a bag with 0.7 gram of crack in it, which Bailey seized. Afterwards, Bailey helped Page locate another person with an outstanding warrant, but did not otherwise assist police in any investigations. Eventually, Bailey got two arrests warrants, one for distribution of the 0.1 gram of crack and one for possession with intent to distribute the 0.7 gram of crack (more drugs were found during the execution of the arrest).

Bailey filed a motion to suppress the 0.7 gram of crack, arguing that Page had wrongfully entered his home that night. At the end of the suppression hearing, the district court raised concerns about Page’s statement (in the court’s words) that Bailey could “put the drugs here and we’re square,” interpreting that as meaning “I’m not going to do anything. Give it here and you get immunity, zero for it.” In supplemental briefing, Bailey argued Page breached his promise by arresting him. The Government countered that it was Bailey who breached a promise, by not providing substantial assistance to Page with regard to other drug dealers. In addition, it argued that even Page had breached a promise it led only to suppression of the 0.7 gram of crack, not the 0.1 gram and the charge based on that. The district court sidestepped the issue of whether a promise was made and breached, but agreed that the suppression of 0.7 gram of crack didn’t impact the other charge and denied the motion to suppress.

On appeal, the Fourth Circuit vacated the district court’s decision and remanded for further proceedings. The court’s primary analysis involved whether a promise that Page is alleged to have made can be enforced by the defendant. The court concluded it could, analogizing it to non-prosecution agreements negotiated by prosecutors. The court rejected the Government’s argument that Page didn’t have the authority to make such promises, noting that his promise was not to arrest Bailey, which was within his authority as a police officer (as opposed to promising not to charge him). Because the district court had not reached a conclusion on whether a promise had been made (or breached), the case was remanded for additional proceedings.