Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Utah v. Strieff and the Exclusionary Rule
I 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?
Published in Law, Policing
I’d need to see the evidence that the officer “threatened” and/or “intimidated” the suspect in this case. From what I’ve read, the officer merely asked questions.
The uniform itself is intimidating. They power he or she has to lock you up is intimidating.
Of do you not feel any coldness when you pass a cop car on the side of the road even if you are not speeding?
I’m not a lawyer, but I’m pretty sure this is incorrect. If you read Thomas’ opinion, he consistently describes the stop as “unlawful” and “illegal.” He never suggests that it was not. He only addresses how egregious the violation was. He does so because that’s part of the metric used to evaluate whether more harm was done by the illegal stop than would be done by excluding the evidence.
The police are out of control, and all the “blue lives matter” blustering on the Right is only encouraging them.
“They’re out there protection’ us!” Really? When was the last time a cop prevented a crime? Sump’n happens, you call ’em, and 40 minutes later they show up and take a few notes.
The occasions on which they go totally focused always have to do with an attack on “one of our own”. If you live in Pa, maybe you remember the months long manhunt for Eric Frein. After the area had bern paralyzed for months, the Feds finally came in and found him in , oh, like 2 days.
Citizens are getting shot. In the back! Tear gassed. Yanked out of their cars and thrown to the ground. Passengers in vehicles manhandled if they don’t want to show ID.
All this in the course of:
traffic stops.
If it’s just you and the Blue on a lonely road in the dark–anything can happen.
I’m appalled at this decision. Where is the nexus between a traffic violation and any reasonable suspicion that an individual is carrying contraband, or a weapon?
Havent been practicing criminal law, but when I was in law school the trend of 4th Amendment cases was definitely in the other direction: the poisonous tree doctrine, as has been noted; the demise of the “Silver Platter” doctrine.
I wish SCOTUS hadn’t done this. It’s not going to make it any easier to get people like Trump’s picks on to the Court.
I’ve always been uncomfortable with the exclusionary rule. When an officer breaks the law during a stop, the officer should be disciplined and/or prosecuted. I don’t agree with letting bad guys go free because of an officer’s mistake. And it doesn’t date back to the founding, so I’m not convinced an originalist should uphold it.
An officer’s innocent mistake should produce a career-impacting letter in his personnel file. A negligent mistake should get him fired. A deliberate mistake should get him prosecuted for violating the subject’s civil rights. If the feds can prosecute violent crimes as civil rights violations (and they do), prosecuting egregious police behaviour should happen, too. It’s called “Qualified Immunity” because it doesn’t apply in negligent or deliberate cases.
I may have some libertarian sympathies, but this is one of those topics where I think libertarians are off their rockers.
Phil, can you clarify? It seems like you are for enforcement against police, but then say the libertarians are off their rockers. I am confused.
4th Amendment freedom from unreasonable searches and seizures is pretty fundamental.
And do you realize how difficult, time-consuming, and well-nigh impossible it is to discipline or dismiss a civil service employee?
He said that the question of the stop’s legality wasn’t decided in his opinion because the state had already conceded the point.
A tip said drug dealing was going on in the house, so a cop goes to the house and stops and questions someone. Sounds like probable cause to me. And even if it isn’t, this case illustrates the problem: everything is subject to subjective second-guessing after the fact. “You thought you had good cause but we don’t. Dismissed…”
OK. I’m for enforcement against police misconduct while retaining the evidence against the original perp.
The exclusionary rules exists to remove the incentive for police to break 4th amendment rules. It’s purely a mechanical policy choice on how to uphold the 4th amendment. I’m convinced that the policy was chosen in the 20’s because the progressive agenda places government agents on a plane above the common citizen, and prosecuting police misconduct undermines that.
I want the 4th amendment upheld by punishing police or other government agents that violate it. Punishment appropriate to the severity of the violation, just like anything else. Letting criminals go free due to police mistakes punishes us, the general public. That’s morally wrong, in my book. It’s due to a government-agent privilege that suits pro-government progressives just fine.
The exclusionary rule has acquired the aura of a foundational constitutional principle that I don’t believe it deserves. I also think punishing the general public for police misconduct is civilizationally unsustainable, but that’s a whole ‘nother topic.
Police, as with everyone, can ask someone to stop and answer questions. People who are stopped can refuse to cooperate, or they can agree. [Policeman: “Do you mind if I ask you a few questions?” Person: “Yes, I do” or “No, go right ahead.”] Absent reasonable suspicion that a crime has been committed (or is about to be committed) and that the person stopped is in some way connected with the crime, the police have no authority to restrain the individual. [Even with reasonable suspicion to justify the detention, the person detained can, of course, still refuse to answer questions.] If the police do have reasonable suspicion, they can detain the person briefly while they check the situation out. If the police have reasonable suspicion that the person they’re dealing with might be armed, the police may conduct a pat down search of the outer clothing; if the police feel something that appears to be a weapon, they can reach into the clothing to retrieve the object. This is the “stop and frisk” that is allowed under the Terry v Ohio decision (a so-called Terry stop). Provided that the police have what a court later agrees was reasonable suspicion, if the person detained attempts to leave, they can be arrested. If, during the detention, the police receive or obtain evidence that provides probable cause to believe the individual detained committed a crime (and not necessarily the one that provided suspicion for the stop), the police may arrest the individual. If, on the other hand, the police screw up (they don’t have reasonable suspicion to detain or frisk the individual; they detain the individual too long without probable cause; they arrest the person without probable cause; they exceed the limits of a proper frisk without probable cause, etc.) any evidence they obtain after the screw up is subject to suppression. This is the “Exclusionary Rule” that was first applied by the USSC in 1914 and was applied to the states in 1961. Evidence that was discovered or obtained after the initial illegal act is referred to as “the fruit of the poisonous tree” and is subject to suppression. As Justice Thomas points out, there are several judicial exceptions to the exclusionary rule: the first two exceptions (independent source and inevitable discovery) didn’t apply in this case, but the majority concluded that the third exception, the attenuation doctrine, did apply. An example of this doctrine would be where the police unlawfully stop someone’s car, but the person nevertheless agrees to let the police search the vehicle. But in this case, the defendant’s acts did not provide the attenuation; instead, it was the discovery that there was an outstanding arrest warrant for the defendant that provided a legitimate reason (in the Court’s view) to uphold the discovery of illegal drugs that were found in a search pursuant to the defendant’s arrest on the outstanding warrant. [cont.]
Yup. But not the exclusionary rule.
Yup, sounds like the real problem that needs to be solved. Distorting the 4th amendment is not the solution.
No. I don’t.
This is what I was thinking as well.
This is really a huge gray area, and I tend toward’s Bryan’s view: the police have an implied authority that makes their “innocent” questioning anything but.
First off, the First Amendment has no bearing here. The police officer is not acting as a private citizen here but as a representative of the state.
But more to the point, there is a thornier issue: the notion that a police officer should be able to inquire – not demand – about a citizen’s identity seems normal and proper. Knowing whom he is dealing with helps him carry out his job and keep himself and his beat safe.
Of course the citizen is under no obligation to provide their identity in this situation. But what happens when the citizen says no: they immediately draw heat upon themselves. There’s no way of telling a cop you’re not going to betray your identity without escalating a situation.
And when it comes to a person legally authorized to use deadly force against you in certain situations, there’s a natural tendency to not want to needlessly escalate any situation with a cop.
There is a real Catch-22 here.
The question before the Supreme Court was whether the evidence located during the search of Strieff was admissible. Normally, evidence obtained during an illegal search (one without a search warrant, or under one of the recognized exceptions to the requirement of a search warrant) would be inadmissible. However, the existence of an arrest warrant allowed the evidence to be admissible. Search incident to arrest is a recognized exception. The attenuation doctrine allows the search incident to arrest to be separated from the questionable initial stop circumstances.
I’m no legal eagle, but I think there’s an underlying truth to law enforcement: at some point it all becomes a zero-sum game.
Because law enforcement is a human endeavor, there’s a certain degree of both imprecision and foul play which will always be involved. So that puts us in front of a Sowellian “no solutions” dilemma:
Either we intentionally bind one hand behind our back to prevent the state from becoming overbearing – with the inevitable result of letting knowingly guilty people go free from time to time – or we prosecute the guilty even if we discovered their guilt through improper means – thus opening a door to police abuse.
One way or the other, some injustice will occur. The real question is: which injustice is less palatable? I find the overbearing police state less palatable, personally.
Well, look, there’s a pretty clear set of rules. Do this, and the search is fine, do that, and it’s not. The cop in question did stuff he wasn’t supposed to do and just got rewarded for it.
I’m hoping to hear from some of our attorneys on this.
I’m a 27-year criminal prosecutor, with a particular interest in Fourth Amendment issues. I spent a year, early on, litigating issues just like this (including arguing the validity of DUI checkpoints at our Court of Appeal).
The general rule is a “causation” test: when an officer has violated a person’s Fourth Amendment rights by some illegal search or seizure, any evidence that is discovered as a result should be suppressed.
Here’s why everyone in this case conceded that the initial detention was illegal: it has been the law, for many years, that the police can’t just detain people, willy-nilly, for the heck of it. (This should make most of you more comfortable!) In 1968, in Terry v. Ohio, the U.S. Supreme Court ruled that the police cannot detain a person unless they reasonably suspect that the person is involved in criminal activity. (This is why they often call it a “Terry stop.”)
“Reasonable suspicion” is defined as “specific and articulable facts” that would indicate to a reasonable police officer that a crime has been, is being, or is about to be committed. Whether “reasonable suspicion” exists in a particular case depends on the totality of circumstances known to that officer, and can be the result of a combination of facts, each of which is by itself innocuous.
If an officer detains a person without sufficient “reasonable suspicion,” it is an illegal seizure, and any resulting evidence is normally deemed to be suppressible.
First off, I thought reasonable suspicion, not probably cause, was the standard at issue here.
But either way, there’s a larger problem here regarding the Supreme Court: the importance of these small-time rulings by the SCOTUS is not their decision in the actual case at hand, but the larger implications for a much wider-ranging issue.
In this case, that underlying issue is clear. But what happens when the particulars of a case don’t line up well enough to allow that underlying issue to be addressed?
Since the court can only take on so many issues per year, I think it’s reasonable to say in this case: for the sake of clarifying a fundamental question of broad importance, we are going to assume that the initial investigation was unlawful regardless of the particulars. That might not be satisfying for the two individual parties in question, but is much more useful to the country as a whole.
I would say the general public got rewarded for it by the removal of one criminal. A good arrest helps the officer’s statistics and therefore chances of promotion. That should be deleted in this case, and further countered with some administrative punishment, in my opinion. Setting the criminal free punishes the rest of us.
I would heartily disagree. The warrant was for a traffic issue. The search turned up drugs. It’s not like they found a bloody chain saw and a bunch of dead nurses in the trunk.
This is yet another Fourth Amendment erosion courtesy of the War on Drugs.
[Cont. from #40]
In other words, the majority decided that while the police officer’s stop and restraint of the defendant was illegal because, while the officer thought he had enough reasonable suspicion (or even probable cause) to stop the defendant because he’d seen him leaving a suspected drug house, the Court concluded that the officer had guessed wrong. The lower courts had disagreed on this question (the trial court and Utah Court of Appeals ruled the evidence admissible; the Utah Supreme Court disagreed and reversed). The USSC majority reversed the Utah Supreme Court. The Court held that the existence of the lawful outstanding arrest warrant “broke” the “causal link between the government’s unlawful act and the discovery of the evidence.” While finding the proximity between the illegal act and the discovery of the contraband after the arrest was too brief, the Court found that the intervening discovery of the valid arrest warrant, strongly favored application of the attenuation exception. The pre-existing valid arrest warrant justified taking the defendant into custody, and the fact that the defendant was in custody allowed the police officer to make a valid search of the defendant’s person pursuant to the lawful arrest. Thus, in the majority’s view, the initial invalid detention of the defendant based on less than reasonable suspicion (let alone probable cause) was attenuated by the intervention of the independent discovery of the valid outstanding arrest warrant. The Court additionally found the third factor used to evaluate the attenuation factor – “the purpose and flagrancy of the official misconduct” – strongly favored the police in this case because the officer was, at most, negligent in deciding that he could stop and detain the defendant. The police officer had not seen the defendant enter the suspected drug house, so he did not know how long he had been there (a brief stop would have been more likely to be a drug transaction), and the officer demanded that the defendant stop and answer questions (instead of merely asking him if he would agree to do so). The Court decided “these errors in judgment hardly rise to a purposeful or flagrant violation of [the defendant’s] Fourth Amendment rights.” The bottom line (in my view at least): the only surprising thing about this case is that the four conservatives got Breyer to go along with their decision.
[Sorry this is so long – blame my 38 years as an appellate lawyer!]
Note: I’ve italicized reasonable suspicion and probable cause simply because they are legal terms of art referring to relative degrees of proof that call for flexible judgment both by an officer engaged in investigating possible criminal activity and a court that later evaluates that officer’s conduct.
I haven’t read a lot of supreme court opinions. Is it normal for justices to use this kind of language in explaining their decision?
But the underlying principle (as I understand it) behind our criminal justice system is: you can’t have it both ways. If illegal methods are used to determine someone’s guilt, our general rule is: we let an obviously guilty person walk free.
What you describe would be the ideal scenario, but one which wouldn’t work well in real life: of course the cop should be reprimanded. But if he makes his department look good, they have an incentive to look the other way at his transgression, thus encouraging such behavior among their ranks.
On the other hand, if a guilty person walks free due to police error, you can bet dollar to donuts that they will find themselves under enormous public pressure not to let that happen again.
Short answer: Yes.
So in this case, a tip had been received that drug activity was going on at the house. The cop watched the house for about three hours over the course of the week and noticed frequent brief visitations, suggesting to him that drug dealing was taking place. He decided to stop “the next person” that left the house to try to get info. Significantly, the cop couldn’t say how long the person he stopped had been in the house.
Does that constitute reasonable suspicion? I’d say no, since he had no evidence that this particular person had committed a crime.
I’m unsure of the legal definition of detain. Does a cop need reasonable suspicion to ask the guy what’s going on in the house? To ask him for his ID?
By the way, does the cop have to identify himself (assuming he’s not in uniform)?
Okay, having said that . . .
A few years ago, the “attenuation of the taint” concept (the basis for this decision) emerged. It essentially holds that — even if there is unlawful police conduct — if time, other events, etc. intervene to a sufficient extent, the evidence in question (in this case, the discovery of the arrest warrant) will be deemed to no longer be “tainted” by that initial unlawful police conduct.
Now, I’m pretty hard core when it comes to this Fourth Amendment stuff. I’m all for having (and using!) exceptions to the general prohibition of unlawful searches and seizures . . . so long as those exceptions comport with common sense, justice, etc.
But . . . I have never been comfortable with the “attenuation of the taint” doctrine, for several reasons. Among them:
By my understanding, if one is being officially detained, they do not have the right to walk away. The “stop” is coercive rather than voluntary.
Of course, what qualifies as “sufficiently reasonable?” That’s an inherently subjective criterion. We have no choice but to rely on such subjective criteria because it’s impossible to specify every possibility, but it’s subjective nonetheless.
What bothers me about Sotomayor’s dissent is a matter of logic. You cannot use a subjective feeling (even if it’s widely believed) as if it was an objective fact.
Sotomayor’s dissent alleges that we can’t view these cases in isolation. She cites a general assumption, i.e., a widespread feeling without any objective facts, that indicates that in the aggregate, police abuse these powers. (“Come on, we all know it, right?”) She then uses that subjective assumption as if it was an objective fact, to claim that we must presume this to be an instance of abuse.
By the way, before we get too excited about Sotomator’s (and Kagan’s) opinion, we should note that these were dissents. Clarence Thomas wrote the opinion of the majority, which decided that the fruits of the search were admissible.