Contributor Post Created with Sketch. Utah v. Strieff and the Exclusionary Rule

 

shutterstock_258602471I haven’t had time to read the full decision yet, but am very curious to hear what the Ricochetti at large, and those with expertise in law enforcement and criminal law, think of yesterday’s Supreme Court decision. The majority decision (written by Justice Thomas and joined by Roberts, Kennedy, Breyer, and Alito) maintains that evidence from a body search is admissible in court if it’s made upon realization that there the detained party has an outstanding warrant, even if the initial police stop is illegal. As described by Thomas, what happened was:

This case began with an anonymous tip. In December 2006, someone called the South Salt Lake City police’s drug-tip line to report “narcotics activity” at a particular residence. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs. One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store’s parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence. As part of the stop, Officer Fackrell requested Strieff ’s identification, and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff’s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.

The State charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.

He continues:

[The question remains as to] whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff ’s person. The three factors articulated in Brown v. Illinois, 422 U. S. 590 (1975), guide our analysis. First, we look to the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discov- ery of evidence followed the unconstitutional search. Id., at 603. Second, we consider “the presence of intervening circumstances.” Id., at 603–604. Third, and “particularly” significant, we examine “the purpose and flagrancy of the official misconduct.” Id., at 604. In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ulti- mately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant’s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence.

[…]

Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short- term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” App. 17. Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick, 501 U. S. 429, 434 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions”). But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff ’s Fourth Amendment rights.

While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precautio[n]” for officer safety. Rodriguez v. United States, 575 U. S. ___, ___ (2015) (slip op., at 7). And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest.

Justice Sotomayor strongly dissented, and was joined by Justice Ginsburg:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war­ rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arrest­ ing you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

Then, after briefly citing Ta-Naheesi Cotes, she goes full #BLM/Wise Latina:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. […] They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

More (this section was not joined by Ginsburg):

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience sug­ gested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speed­ ing or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. […] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambigu­ous….

The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.

Justice Kagan wrote a separate, more measured dissent, that Ginsburg also joined:

If a police officer stops a person on the street without reasonable suspicion, that seizure violates the Fourth Amendment. And if the officer pats down the unlawfully detained individual and finds drugs in his pocket, the State may not use the contraband as evidence in a crimi­ nal prosecution. That much is beyond dispute. The ques­ tion here is whether the prohibition on admitting evidence dissolves if the officer discovers, after making the stop but before finding the drugs, that the person has an outstand­ ing arrest warrant. Because that added wrinkle makes no difference under the Constitution, I respectfully dissent.

[…]

Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissi­ ble, he is likely to think the unlawful stop not worth mak­ ing—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admis­ sible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individu­ als without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Because the majority thus places Fourth Amendment protections at risk, I respectfully dissent.

What of it, Ricochet?

There are 151 comments.

  1. Columbo Member

    Sotomayor (wise Latina) Dissent Reads Like ‘A Black Lives Matter Manifesto’

    • #1
    • June 21, 2016, at 7:13 AM PDT
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  2. Owen Findy Member

    I’m not an expert in lawrenforcement or criminal law, so I’m in the set, “at large”.

    I want what Randy Barnett wants: judicial engagement in support of the Constitution. If I knew that happened here, I’d be happy. If I knew it didn’t, I’d be very ticked off. Since I can’t tell, I don’t have an opinion, or resultant feelings, about the decision.

    BUT … I am convinced that previous decisions have already weakened the Fourth Amendment, and am very ticked off about that. Every time I hear about random traffic stops (DUI checkpoints, whatever they’re called), e.g., which Scalia supported in a decision years ago, I see the red curtain of blood.

    • #2
    • June 21, 2016, at 7:20 AM PDT
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  3. Tuck Inactive

    So they’re arguing that he shouldn’t be arrested on the valid warrant because he was stopped illegally? The policeman should have to just let him go?

    That doesn’t seem to make a heck of a lot of sense.

    • #3
    • June 21, 2016, at 7:20 AM PDT
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  4. Columbo Member

    Tuck:So they’re arguing that he shouldn’t be arrested on the valid warrant because he was stopped illegally? The policeman should have to just let him go?

    That doesn’t seem to make a heck of a lot of sense.

    Agreed. It wasn’t one thing, it was a series of findings. A mosaic if you will. There was observed possible criminal activity prior to the stop. The revelation of the outstanding warrant for arrest adds a supporting color. Likely the behavior of the suspect was the clincher.

    Hey, just the fact that they got Stephen Breyer to vote with the majority says it all about this case. Let’s call it balancing out the Ferguson Effect, which Heather Mac Donald has supported with research data.

    • #4
    • June 21, 2016, at 7:36 AM PDT
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  5. Fred Cole Member

    Tuck: So they’re arguing that he shouldn’t be arrested on the valid warrant because he was stopped illegally? The policeman should have to just let him go?

    No. They’re arguing that the search was invalid because if he was never stopped illegally, then they wouldn’t have found the outstanding warrant.

    • #5
    • June 21, 2016, at 7:51 AM PDT
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  6. Fred Cole Member

    It’s cases like this where you miss Justice Scalia…

    This is a terrible decision. It means cops can make unlawful stops and justify it after the fact. The ramifications of this decision are enormous for individuals (and classes of people) who are routinely harassed by the police.

    • #6
    • June 21, 2016, at 7:53 AM PDT
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  7. David Carroll Thatcher
    David Carroll Joined in the first year of Ricochet Ricochet Charter Member

    I guess the question was whether one can make a lawful arrest based upon information obtain from an unlawful stop. I am not comfortable with anything that encourages the police to engage in unlawful conduct which this decision seems to do. There is now no downside to an unlawful stop.

    Do we really want to reward the police for making unlawful stops?

    • #7
    • June 21, 2016, at 7:56 AM PDT
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  8. Tom Meyer, Common Citizen Contributor

    Fred Cole:

    No. They’re arguing that the search was invalid because if he was never stopped illegally, then they wouldn’t have found the outstanding warrant.

    As I understand it, this is correct. There was no question wasn’t whether the warrant should be prosecuted, but whether he could also be charged for the drugs he had on him at the time.

    • #8
    • June 21, 2016, at 7:56 AM PDT
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  9. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    • #9
    • June 21, 2016, at 7:56 AM PDT
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  10. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Fred Cole:

    Tuck: So they’re arguing that he shouldn’t be arrested on the valid warrant because he was stopped illegally? The policeman should have to just let him go?

    No. They’re arguing that the search was invalid because if he was never stopped illegally, then they wouldn’t have found the outstanding warrant.

    Messy. On the one hand, police don’t need to just stop people without cause and demand ID. I have the right (recognized or not) to go about my business without having to show my ID to any government official in normal public spaces.

    If someone has an outstanding warrant, and the police are talking to them, they should be able to pick them up.

    However, just because I have an outstanding warrant for one thing, they should not be able to use evidence gathered in an illegal search against me for another charge.

    • #10
    • June 21, 2016, at 7:56 AM PDT
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  11. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    Bryan G. Stephens: However, just because I have an outstanding warrant for one thing, they should not be able to use evidence gathered in an illegal search against me for another charge.

    If the search had occurred before the office was informed about the outstanding warrant and the official arrest, I would be inclined to agree. However, the search occurred after the office was informed of the outstanding warrant and after he officially placed the suspect under arrest. The only way the search was illegal would be if the arrest itself was illegal, which I don’t (personally) see.

    The only thing to say to a police officer in that situation is, “am I being detained, officer, or am I free to go?”

    • #11
    • June 21, 2016, at 8:10 AM PDT
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  12. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Misthiocracy:I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    Police “asking” is much like a demand. There is a power differential that they use to bully citizens. I have been on it first hand with Police demanding entrance into one of our clinics to look for someone when they did not have a warrant.

    • #12
    • June 21, 2016, at 8:12 AM PDT
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  13. Profile Photo Member

    Misthiocracy:I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    I agree. While crim law is not my area, I think a better decision would have been to say this conduct was sufficient for a cop to stop a suspect to ask questions, including ID, which is really pretty minimal. I’m much more comfortable with that kind of discretion given to cops than to open the door to using evidence obtained as a result of an “illegal” act.

    • #13
    • June 21, 2016, at 8:16 AM PDT
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  14. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    Bryan G. Stephens:

    Misthiocracy:I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    Police “asking” is much like a demand. There is a power differential that they use to bully citizens. I have been on it first hand with Police demanding entrance into one of our clinics to look for someone when they did not have a warrant.

    Did you let them in?

    • #14
    • June 21, 2016, at 8:17 AM PDT
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  15. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    From the New York Times article on the decision:

    A police officer, Douglas Fackrell, stopped Edward Strieff after he had left the house based on what the state later conceded were insufficient grounds, making the stop unlawful.

    If the state conceded that the stop was unlawful, that changes things. From what I’ve read, I don’t personally agree with the state on that point, but if they say it was unlawful, then it was unlawful.

    I personally don’t think police officers should be prevented from merely asking questions. That’s too high a burden. One could argue that a police officer has a First Amendment right to merely ask questions, just like any other person.

    • #15
    • June 21, 2016, at 8:22 AM PDT
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  16. Columbo Member

    Fred Cole:It’s cases like this where you miss Justice Scalia…

    This is a terrible decision. It means cops can make unlawful stops and justify it after the fact. The ramifications of this decision are enormous for individuals (and classes of people) who are routinely harassed by the police.

    If this was an “unlawful” stop, I would agree with you that it was a terrible decision.

    I think that SCOTUS has determined that the facts of this case have set a more narrow interpretation of the reach of the Terry decision’s definition of an “unlawful” stop.

    A mosaic of a set of factual conditions like in Strieff is now a “lawful” stop under the concept of reasonable suspicion.

    • #16
    • June 21, 2016, at 8:27 AM PDT
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  17. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Misthiocracy:

    Bryan G. Stephens:

    Misthiocracy:I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    Police “asking” is much like a demand. There is a power differential that they use to bully citizens. I have been on it first hand with Police demanding entrance into one of our clinics to look for someone when they did not have a warrant.

    Did you let them in?

    No. However, absent me as a manager, front desk might have done so, and broken the law in the process. Would the police have been liable? No.

    That is an example of an attempt to abuse police power, pure and simple.

    • #17
    • June 21, 2016, at 8:28 AM PDT
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  18. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    Bryan G. Stephens:

    Misthiocracy:

    Bryan G. Stephens:

    Misthiocracy:I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    Police “asking” is much like a demand. There is a power differential that they use to bully citizens. I have been on it first hand with Police demanding entrance into one of our clinics to look for someone when they did not have a warrant.

    Did you let them in?

    No. However, absent me as a manager, front desk might have done so, and broken the law in the process. Would the police have been liable? No.

    That is an example of an attempt to abuse police power, pure and simple.

    So, the law should assume that all citizens are too mindless to ever exercise their rights in the face of a police officer, because of some inferred “power differential”?

    I’m not sure I buy that.

    You might as well argue that police are never allowed to question someone who is under the influence of drugs, because the drugs make them too addle-brained to exercise their own rights

    • #18
    • June 21, 2016, at 8:32 AM PDT
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  19. Fred Cole Member

    Misthiocracy: I don’t understand why the stop itself wasn’t legal.

    Interestingly, no one is contesting that the stop was unlawful:

    At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop

    • #19
    • June 21, 2016, at 8:38 AM PDT
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  20. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Misthiocracy:

    Bryan G. Stephens:

    Misthiocracy:

    Bryan G. Stephens:

    Misthiocracy:I don’t understand why the stop itself wasn’t legal. It doesn’t appear that Strieff was being officially detained. A police officer is allowed to simply ask citizens questions, correct? Strieff was under no legal obligation to answer those questions, or to provide his identification, right?

    The dissent seems to hinge on the semantic difference in meaning between the words ‘ask’ and ‘demand’. That seems like a really weak justification for dissent, IMHO.

    Police “asking” is much like a demand. There is a power differential that they use to bully citizens. I have been on it first hand with Police demanding entrance into one of our clinics to look for someone when they did not have a warrant.

    Did you let them in?

    No. However, absent me as a manager, front desk might have done so, and broken the law in the process. Would the police have been liable? No.

    That is an example of an attempt to abuse police power, pure and simple.

    So, the law should assume that all citizens are too mindless to ever exercise their rights in the face of a police officer, because of some inferred “power differential”?

    I’m not sure I buy that.

    You might as well argue that police are never allowed to question someone who is under the influence of drugs, because the drugs make them too addle-brained to exercise their own rights

    Police should not use their badge and threats to intimidate citizens. Police have been known to extract false confessions. Police often don’t actually know the law.

    The Police can take away your liberty, for no reason. Even if you later are released, you have no recourse to punish the police for false arrest. And once the system decides to arrest you, it will work hard to hang you for whatever it can find to save face.

    I have seen this happen to many clients, who, through no fault of their own, are scared to death to be dealing with the police in the first place.

    I am pro-law enforcement, and putting away bad guys. I am not for liberty being trampled for the sake of expediency.

    • #20
    • June 21, 2016, at 8:39 AM PDT
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  21. Fred Cole Member

    In all honesty, I was surprised at the ruling. To me it smacks of fruit of the poisonous tree:

    Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally.[1] The logic of the terminology is that if the source (the “tree”) of the evidence or evidence itself is tainted, then anything gained (the “fruit”) from it is tainted as well. The fruit of the poisonous tree doctrine was first described in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).[2][3][4] The term’s first use was by Justice Felix Frankfurter in Nardone v. United States (1939).

    Such evidence is not generally admissible in court.[5] For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a train station locker, and evidence of a crime came from the locker, that evidence would most likely be excluded under the fruit of the poisonous tree legal doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and his or her own statements.

    • #21
    • June 21, 2016, at 8:41 AM PDT
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  22. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Fred Cole:In all honesty, I was surprised at the ruling. To me it smacks of fruit of the poisonous tree:

    Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally.[1] The logic of the terminology is that if the source (the “tree”) of the evidence or evidence itself is tainted, then anything gained (the “fruit”) from it is tainted as well. The fruit of the poisonous tree doctrine was first described in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).[2][3][4] The term’s first use was by Justice Felix Frankfurter in Nardone v. United States (1939).

    Such evidence is not generally admissible in court.[5] For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a train station locker, and evidence of a crime came from the locker, that evidence would most likely be excluded under the fruit of the poisonous tree legal doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and his or her own statements.

    Very much so. I get he had the warrant and they picked him up. But adding charges for other things is part of the piling on we see in prosecutions.

    • #22
    • June 21, 2016, at 8:43 AM PDT
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  23. Freeven Member
    Freeven Joined in the first year of Ricochet Ricochet Charter Member

    I happened to have just read the opinions on this case. (https://supreme.justia.com/cases/federal/us/579/14-1373/)

    I have no legal training and found quite a lot of subtlety in some of the reasoning. Ultimately, I sided with the minority, but I think it’s a very close call. (Thomas nearly convinced me. Love his opinions.)

    The deciding factor for me was the officer asking for ID. His stated reason for stopping the guy was to inquire about what was going on in the house. He could have done that without asking for and running the ID, and without the ID he doesn’t find out about the warrant and drugs. Since both sides agreed that the initial stop was illegal, I’d have suppressed the evidence on that basis.

    That said, it’s not cut and dry. If the stop uncovered evidence of terrorist activity (rather than an unpaid parking ticket) I’d not want that thrown out. The Court’s approach of balancing the harm caused by the illegal stop against the harm done by ignoring the revealed crime makes a lot of sense, even though it can sometimes be a tough judgment call.

    I think this is the first Sotomayor opinion I’ve read, and while I ultimately agreed with her side, I found her tone off putting and both her writing and reasoning weakish. Kagan’s dissent is better reasoned and written, IMO.

    • #23
    • June 21, 2016, at 8:46 AM PDT
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  24. Columbo Member

    Fred Cole:

    Misthiocracy: I don’t understand why the stop itself wasn’t legal.

    Interestingly, no one is contesting that the stop was unlawful:

    At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop

    And I think that SCOTUS just clarified this definition for Officer Fackrell, prosecutors, etc. that he did in fact have reasonable suspicion for the stop and that they wanted to limit the reach of the exclusionary rule from the Terry decision to “situations in which there has been a flagrant violation of the Fourth Amendment.”

    This is covered very well at verdict.justia … When Illegal Stops Lead to the Discovery of Outstanding Warrants: Utah v. Strieff

    • #24
    • June 21, 2016, at 8:51 AM PDT
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  25. KC Mulville Inactive

    This is what always struck me about CSI shows and their spinoffs … When the cop says, “You don’t mind if I swab your mouth, do you?” … the correct answer is “No f***ing way.”

    Of course, that would ruin 90% of the plot for TV shows, but that’s not my problem.

    • #25
    • June 21, 2016, at 8:52 AM PDT
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  26. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    Fred Cole:

    Misthiocracy: I don’t understand why the stop itself wasn’t legal.

    Interestingly, no one is contesting that the stop was unlawful:

    At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop

    That’s the part I find so weird. Maybe it has to do with something specific about Utah law?

    If everybody agrees that the stop was unlawful, then I’m forced to side with the dissent. I simply don’t see how the stop itself was unlawful.

    • #26
    • June 21, 2016, at 8:52 AM PDT
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  27. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    Freeven: The deciding factor for me was the officer asking for ID. His stated reason for stopping the guy was to inquire about what was going on in the house. He could have done that without asking for and running the ID, and without the ID he doesn’t find out about the warrant and drugs. Since both sides agreed that the initial stop was illegal, I’d have suppressed the evidence on that basis.

    But the guy was under no legal obligation to hand over the ID, was he? It comes down to a matter of opinion whether a request from a police officer should automatically be considered “coercive” because of some inferred “power differential”.

    • #27
    • June 21, 2016, at 8:55 AM PDT
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  28. Misthiocracy grudgingly Member
    Misthiocracy grudgingly Joined in the first year of Ricochet Ricochet Charter Member

    Columbo:

    Fred Cole:

    Misthiocracy: I don’t understand why the stop itself wasn’t legal.

    Interestingly, no one is contesting that the stop was unlawful:

    At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop

    And I think that SCOTUS just clarified this definition for Officer Fackrell, prosecutors, etc. that he did in fact have reasonable suspicion for the stop and that they wanted to limit the reach of the exclusionary rule from the Terry decision to “situations in which there has been a flagrant violation of the Fourth Amendment.”

    But that doesn’t seem to have been the question that SCOTUS was asked to clarify, so it shouldn’t be relevant to the decision. If every party to this case agrees that the stop itself was unlawful, shouldn’t SCOTUS simply accept that the stop was unlawful?

    • #28
    • June 21, 2016, at 9:00 AM PDT
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  29. Freeven Member
    Freeven Joined in the first year of Ricochet Ricochet Charter Member

    Misthiocracy:

    Freeven: The deciding factor for me was the officer asking for ID. His stated reason for stopping the guy was to inquire about what was going on in the house. He could have done that without asking for and running the ID, and without the ID he doesn’t find out about the warrant and drugs. Since both sides agreed that the initial stop was illegal, I’d have suppressed the evidence on that basis.

    But the guy was under no legal obligation to hand over the ID, was he? It comes down to a matter of opinion whether a request from a police officer should automatically be considered “coercive” because of some inferred “power differential”.

    In Sotomayor’s dissent, she characterized the officer as “demanding” to see ID. She tends to use loaded language in her opinion, so it’s hard to know whether it was a demand or a request — and, yes, even a request can carry the weight of a demand coming form a cop. In any case, the defense conceded that the stop was illegal, so my presumption is that he shouldn’t have asked/demanded to see ID, which is what revealed the underlying crimes.

    • #29
    • June 21, 2016, at 9:09 AM PDT
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  30. Columbo Member

    Misthiocracy:

    Columbo:

    Fred Cole:

    Misthiocracy: I don’t understand why the stop itself wasn’t legal.

    Interestingly, no one is contesting that the stop was unlawful:

    At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop

    And I think that SCOTUS just clarified this definition for Officer Fackrell, prosecutors, etc. that he did in fact have reasonable suspicion for the stop and that they wanted to limit the reach of the exclusionary rule from the Terry decision to “situations in which there has been a flagrant violation of the Fourth Amendment.”

    But that doesn’t seem to have been the question that SCOTUS was asked to clarify, so it shouldn’t be relevant to the decision. If every party to this case agrees that the stop itself was unlawful, shouldn’t SCOTUS simply accept that the stop was unlawful?

    Since it’s law and lawyers, it has to be convoluted and confusing.

    In my pea brain, I think that every party to the case agreed that their understanding of the definition “unlawful” in this case came from the SCOTUS decision in Terry. This formed a previous version of the definition of “unlawful” stop. I think that SCOTUS has now revised and extended their intended definition of an “unlawful” stop to be limited to egregious violations of the Fourth Amendment.

    A stop based upon a reasonable suspicion, with the facts and circumstances of a ‘Strieff’-like stop, are now “lawful”.

    • #30
    • June 21, 2016, at 9:11 AM PDT
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