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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’m pretty uncomfortable just with that horrible name.
But crude jokes aside, thanks for the expert insight. This strikes me as yet another example of where even the perfect legal/judicial framework will always have an Achilles’ heel.
I agree with your sentiment against attenuation of the taint. But doesn’t that position also leave the system open to abuse by a wealthy criminal who will always be able to find some mishandling of evidence/procedure in a case against him – again, since humans are at work, and in a complex case, somebody somewhere on the prosecution side will eventually make a procedural error? Is there room to allow for such unavoidable human error without ruining an otherwise airtight case?
Yes, there is such room. That’s why you see words like “reasonable” and “probable” in the criminal justice system, as opposed to “perfect” and “absolute.”
However, as you point out, some defense attorneys . . . and, unfortunately, some judges . . . forget this.
Good point, thanks.
^This.
No, this is a rule introduced in the 20th century. If it’s somewhere in the Federalist Papers or prior writings our founders relied on, please enlighten me.
That’s my understanding too. It’s a “rule of evidence” that the courts, not legislatures, came up with at some point. Sort of like the Miranda rule, which was meant to undergird the Fifth Amendment but is certainly not required by it.
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” (Magna Carta (1215), emphasis added.)
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Fifth Amendment, emphasis added.)
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . .” (Fourteenth Amendment, Section 1, emphasis added.)
The police should not be permitted to speak with, or accost, any citizen, without advising each that he does not have to speak with the officer nor answer any questions.
Police training should include instructions to the effect that a citizen asking, “Why did you stop me?” is not an occasion for using tear gas or worse.
Police patrolling for traffic violations should not be armed.
Our civil liberties are under attack by our own government, from the Left and the Right. Anyone who thinks its ok to impair our 4th amendment rights in order to curtail crime is the equivalent of those who think it’s ok to impair our 1st, 2nd and 10th Amendment rights to advance diversity.
It’s all of a piece–and the whole is: tyranny.
The specific is, to my knowledge, relatively recent. The principle is much older.
It’s not very surprising that the Founders didn’t address the specific as the Constitution largely pre-dates what we think of as policing.
I think that would be ridiculously burdensome. A community police office should have to read the Miranda script every time they give a talk to an elementary school class? Every time a friendly officer walking the beat simply wants to say hello to a shopkeeper they should have to read the Miranda script? Every time someone approaches the police for help the officer would be required to read the Miranda scripts?
That would result in MORE distrust and fear of the police, not less.
Maybe, but I would say that means a jury of his peers needs to judge him. Not that evidence is excluded. Please show me that the English understood that to mean “exclude evidence”, and I will concede the point.
Show me.
Exactly. We used to police ourselves and our neighbors. We outsource to professionals now.
That ship has long ago sailed. Giving cops the power to stop anybody will only contribute to it.
Why should that advice be required? That’s basically what the Miranda rule says. As I understand it, even if there is no question that a confession was obtained without any coercion, it may still be inadmissible if a Miranda warning didn’t happen. That seems to serve no rational purpose, including preventing coerced confessions from getting into evidence.
The majority seems too utilitarian in this to me. They started with an agreeable outcome (drug user arrested) then worked their way backwards to justify it.
Not only your liberty, but also your livelihood and any spare cash you happen to have. The process is the punishment, and there is absolutely no way to even make a person whole after the fact, not even financially.
No. In your examples the cop is addressing the class, not questioning the kids. So with the “hello, Mr. Donut store owner”. And in your third example, it is the citizen who accosts the cop.
And that was kinda my point: we have no reason to trust the police, and plenty of reason to fear them.
“Observed possible criminal activity” isn’t enough to stop someone. That was one of the findings, and I think that’s right. Going into a house the cop thinks might be a drug house isn’t, and shouldn’t be, enough to stop someone. It’s not “probably cause”.
This is probably an incident where the warrant arrest should have been enough for all concerned. The DA can decline to prosecute for the drug possession, and no you don’t get to keep the meth.
According to that unassailable source — Wikipedia:
Before 1776, English courts excluded self-incriminating evidence that was provided as a result of official compulsion, regardless of its reliability: “[I]n civil causes, the court will force parties to produce evidence which may prove against themselves; or leave the refusal to do it (after proper notice) as a strong presumption, to the jury….But in a criminal or penal cause, the defendant is never forced to produce any evidence; though he should hold it in his hands in court.” “If any evidence or confession has been extorted from her [the defendant], it will be of no prejudice to her on the trial.” Additionally, a defendant could sue to suppress and regain possession of at least some types of illegally seized evidence.
However, in a 1783 case, the English courts declined to suppress evidence obtained by illegal coercion.
Generally speaking, though English law before 1789 did provide some protection, it was not as strong an exclusionary rule as the one that later developed under the Fourth Amendment, which was, after all, partly a reaction against English law including the general warrant and writs of assistance.
Yes, that’s pretty much what I said. The search was pursuant to a valid warrant, however, not the invalid initial stop. I’m somewhat uncomfortable with it, but I think that saying you can’t arrest someone on a valid warrant because the stop was invalid is just a bit too far. He’s not facing any charges because of the invalid stop, but because of the pre-existing warrant.
Treating the guy’s name, learned because of the invalid stop, as tainted evidence seems a bit overly-clever to me.
I don’t like the ruling. It automatically gives deference to the cops that any mistake is a good faith mistake and should slide. They don’t have to follow all the rules cuz they mean well. Especially with the general societal deference given to cops, there is no realistic way to prosecute abuse. Cops nearly always get to slide. We get the Jack Dunphy’s to tell us that officer safety is paramount and nearly anything goes on a search or a stop. If I had a reasonable belief that bad cops would be prosecuted (not just reassigned or suspended or transferred) for doing it wrong, then I might be more deferential to the good ones.
It should be required because, as others have noted here, most citizens, at the initiation of an encounter, are not aware that they don’t have to talk to the police if they don’t want to. And as someone also wrote, if you say no, the situation is likely to escalate pretty fast. Next thing you know, you are under arrest for something like “disorderly conduct”.
If there’s one right all Americans DO know about, it’s the “right to remain silent” when they get arrested. We can all recite the Miranda warnings, just from hearing ’em on cop shows.
But I don’t think we all do know we can say no if cops stop us on the street and ask to talk, or who we are, or to look in our bag.
And we should know this.
Because if you don’t say no, and you give “consent” under the impression you’re not free to refuse, you waive your 4th and maybe 5th Amendment rights.
In your example you specifically wrote that police officers shouldn’t be allowed to speak with any citizen without advising them of their 5th amendment rights first. You didn’t limit it to only apply when asking questions and/or when the police officer initiates the interaction.
I am neither an attorney nor a legal scholar, the wiki seems to provide a fair deal of evidence that precedent for excluding wrongly-attained evidence has a rather lengthy history.
Yes, but you are retro-fitting the evidence and the facts.
The test is (or should be): what would a reasonable officer — i.e., one who does not make an illegal detention — do in this case?
He would not detain Mr. Strieff, because he has no reason to do so. As a result, the existence of the warrant would not come to the officer’s attention. As a result, Mr. Strieff would go on his way (hopefully to be arrested on his warrant in a legal way). The drugs would not be found (at least, not at this time).
From a Constitutional and due process standpoint: Lose the battle, but win the war.
But none of what you quote pertains to the current case. This was an unfounded arrest. Must we have a jury trial to determine if someone can be arrested? Clearly not.
No.
But, it’s all about due process. The point of the exclusionary rule is: the police are responsible to know the law regarding lawful detentions and arrests. If they fail, the “law” (i.e., the judge) needs to step in and do something about it.
If the courts don’t intervene in this way, it allows the police to deprive people of due process during the evidence-gathering portion of cases, in order to ensure convictions at trial. That is what they do in banana republics.
Jeez . . . I’m beginning to sound like a (gulp!) defense attorney.
Go try it on for size. Get dragged through the legal system and exonerated and let me know if you felt justice was done and your liberty was retained or your person remains whole.