Federal appellate judges vacate Kannapolis conviction tied to ‘squared away’ drug charges | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    A Kannapolis man sentenced to nearly six years in federal prison in a drug case will get a new day in court. The 4th U.S. Circuit Court of Appeals questioned Monday whether his conviction stemmed from earlier charges that a police officer had promised were "squared away."

    The case dates back to events in September 2019. Kannapolis Police officer Jeremy Page discovered 0.1 grams of cocaine base during a vehicle search. The search took place shortly after Page had witnessed the car's driver leaving Maurice Sylvester Bailey's house.

    Page confronted Bailey about a suspected drug sale. He called on Bailey to turn over any additional drugs in his possession.

    "In return, Officer Page assured Bailey that he was 'going to take it and ... leave,' and everything would still be 'squared away,'" Judge Roger Gregory wrote for the unanimous three-judge 4th Circuit panel. "As he later testified, Officer Page expected that Bailey would assist him in future investigations. Prompted by Officer Page's offer, Bailey handed over 0.7 grams of cocaine base."


    "In the following weeks, Bailey helped Officer Page locate and arrest an individual for whom the police had an outstanding warrant but did not otherwise aid in Officer Page's investigations," Gregory wrote.

    In November 2019 Page obtained two warrants for Bailey's arrest. They dealt with the 0.1 grams found in the car and the 0.7 grams Bailey turned over directly to Page. When executing the warrants, Kannapolis police discovered Bailey had another 17.8 grams of cocaine base. Authorities prosecuted Bailey for possession with intent to distribute cocaine.

    Based on the understanding that the original charges had been "squared away," Bailey asked the court to suppress the drugs discovered in the November search. Senior U.S. District Judge Carlton Tilley rejected that request.

    "On appeal, Bailey argues that the district court should have granted his suppression motion because his arrest constituted a breach of Officer Page's September 24 promise that all would be 'squared away,'" Gregory wrote. "Because the district court failed to make the factual findings necessary to resolve this argument, we vacate its decision denying Bailey's motion to suppress and the judgment of conviction and remand for proceedings consistent with this opinion."

    The majority opinion focused on a 1972 4th Circuit precedent in a case titled United States v. Carter. "Carter ... stands for the proposition that if the government 'utilize[s] its discretion to strike bargains with potential defendants,' those bargains can be enforced against the government," Gregory explained. "And while Carter concerned a plea agreement, we have since recognized that a non-prosecution agreement 'invokes the same constitutional due process concerns as a plea agreement.'"


    The Carter case helped guide the panel addressing Bailey's claims.

    "Finding the government's argument unpersuasive, we conclude that if Officer Page did breach a promise not to arrest Bailey for either quantity of drugs recovered on September 24 in exchange for his cooperation, Bailey could seek to enforce that promise against the government," Gregory wrote. "To be sure, Carter and its progeny do not address the precise promise Bailey alleges occurred here: a promise not to arrest. Yet we see no reason to treat a non-arrest agreement any differently than the non-prosecution and plea agreements we have previously held enforceable against the government."

    "In non-arrest agreements, as in non-prosecution and plea agreements, the government wields its vested authority to extract cooperation from a potential defendant in exchange for a promise of leniency," the 4th Circuit opinion explained. "A police officer is not entitled to arbitrarily breach these agreements, which have become a central feature of the many drug-related prosecutions that occupy our criminal legal system each year."

    "In all such contexts, therefore, where an individual fulfills his obligations under the agreement, 'settled notions of fundamental fairness' may require the government 'to uphold its end of the bargain,' too," Gregory wrote. "To hold otherwise would rubberstamp a police practice that stands to undermine 'the honor of the government' and 'public confidence in the fair administration of justice.'"

    Appellate judges are sending the case back to U.S. District Court. "[W]e are left with the salient question of whether Officer Page did, in fact, breach ... an agreement," Gregory wrote. "The district court left this question open, and the parties contest the answer."


    "Specifically, they dispute whether there was an agreement, and, if there was, its terms and whether Bailey first breached it by failing to provide sufficient cooperation," he explained. "We decline to address these arguments." Instead a trial judge should address the outstanding dispute.

    Chief Judge Albert Diaz and Judge Stephanie Thacker joined Gregory's opinion.