Sharks and Remoras: Some Assumptions About Drug Crime and Weapons

I've been doing a lot of work recently on Fourth Amendment issues both for my volunteer job (I work on criminal appeals) and for a project that I'm trying to wrap up at school. One thing I keep running up against is the presumption in drug cases that drugs and weapons are essentially synonymous for Fourth Amendment purposes. In other words, if an officer is investigating a drug crime, it seems to be presumptively "reasonable" for that officer to assume that the person being investigated is armed.

Several California appellate decisions spell this presumption out clearly, like People v. Limon (1993) 17 Cal.App.4th 524, 531 (accepting officer’s testimony that "drug dealers often carry weapons, although [the officer] could not give a percentage"); People v. Huerta (1990) 218 Cal.App.3d 744, 750 ("a person entering a residence of illicit drug activity might be armed"); and People v. Glaser (1995) 11 Cal. 4th 354, 367 (guns are "tools of the trade" in the narcotics business).

The punchiest quote I've seen in this regard comes from the 1998 Fourth District case People v. Simpson:

Illegal drugs and guns are a lot like sharks and remoras. And just as a diver who spots a remora is well-advised to be on the lookout for sharks, an officer investigating cocaine and marijuana sales would be foolish not to worry about weapons. Particularly where large quantities of illegal drugs are involved, an officer can be certain of the risk that individuals in possession of those drugs, which can be worth hundreds of thousands and even millions of dollars, may choose to defend their livelihood with their lives . . . . ((1998) 65 Cal. App. 4th 854, 862.)

(Shark and remora image from scubaduba.com. The photo was taken by Scubaguy, of Manhattan.)

Clearly there is a sort of logic to this kind of reasoning. Some drug dealers and users do carry weapons, so perhaps it's fair to generalize and assume that all drug dealers and users might be armed.

On the other hand, perhaps this is just stereotyping.

I'm not a police officer or a drug dealer, so I don't have any real-world experience by which to evaluate the claim that drugs and guns are "like sharks and remoras." On the other hand, I've known plenty of casual drug users. Most of them, these days, are responsible professionals, graduate students, and the like. Not one of them, to the best of my knowledge, has owned a gun. But if a police officer stopped one of these people on suspicion of possessing a controlled substance, some courts might say it was "reasonable" for the officer to presume that the person could be armed and should therefore be subject to a pat search to protect the officer's safety.

Is it, in fact, reasonable to make such an assumption? One would think the reasonableness should turn on the strength of the connection between drugs and guns in a given area and the specific type of crime being investigated. The problem with language about "sharks and remoras," though, is that it seems to suggest that such a nuanced analysis is irrelevant. Where there are sharks, there are remoras. Where there are drugs there will be guns. Or at least it is "reasonable" for an officer to believe as much, whether or not it happens to be true in any given situation.

Some trial court judges will probably cast a critical eye on "sharks and remoras"-type arguments, holding the prosecution to account for reasonable suspicion in a more particularized fashion. Others may be quite deferential to these types of claims when it comes to drug crime, even if the empirical support is weak. But whatever the outcome in any particular case, the judicial interpretation is only part of the picture. A suppression hearing comes long after the actual invasion of an individual's expectation of privacy has occurred. In some cases, as Radley Balko has ably documented, such an invasion is, literally, a paramilitary-style "invasion," and much of the justification for these displays of massive state force is premised on the idea that guns and drugs are like sharks and remoras.

There are many different fish in the sea. Not all of them behave the same way. When it comes to drug crime, though, it's easy to ignore the diversity of experience and focus on simple stereotypes. When we do, the Fourth Amendment is weakened.