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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
In that case I am in your debt, kind sir, for providing the occasion for me to correct and clarify my statement!
And–if I may!–I advise that upon reflection, I am, indeed of the opinion that the cop addressing the school kids should be required to tell them at their impressionable age, that citizens are not required to answer questions from police in random encounters.
Your servant, sir!
–H
Well I’m glad prosecutors like you are out there. Far too many are concerned with winning (sure, they convince themselves it’s about justice and protecting the public.)
Silly side note: what kind of deterrent effect would it have if the state had to pay legal fees and restitution if they failed to get a conviction? The state doesn’t have to get a conviction to do a tremendous amount of damage, and that fact is overlooked entirely.
You mean like paying OJ’s legal fees? :)
Sure. It would add a bit of gamesmanship to both sides of the equation. It should cost the state something when it destroys a person using the criminal justice system and fails to prove guilt.
So, a mixed bag. Clear prohibitions on coerced testimony, much less so on illegal physical evidence. And all subject to circumstances.
That and the large gap from 1789 to 1920 suggest to me that the exclusionary rule is a policy used to enforce the 4th amendment, not a fundamental civil right in itself. I disagree with this policy and prefer other approaches to enforcing the 4th amendment.
I understand that the judges who made this rule were responding to a failure of Congress and the executive to enforce the 4th, and excluding evidence is the only obvious remedy the court has, but that doesn’t mean it should be left to the court. Excluding unambiguous and otherwise uncontested physical evidence under this rule harms the general public.
If the choice is between crime and a criminal state I’ll take the former.
I’m well aware of the cesspit our judicial system has become, through direct exposure (civil). And I’m not so radical as to suggest the exclusionary rule be dropped today. But that it is public-harming alternative to actually punishing those who violate the 4th cannot be denied. I will welcome incremental reforms in that direction, as part of a long-term project to shrink government and make it serve the people instead of itself.
I’m feeling more like Patrick Henry about the whole mess.
Things like the exclusionary rule are a check on the state to protect the innocent. Even if there are negative outcomes of criminals gaming the system I willingly accept those as the cost of liberty. For me that doesn’t mean just that the state doesn’t abuse citizens but that it can’t.
Well, please keep in mind that, even when we don’t get a conviction, it’s not because the defendant is absolutely innocent (even though that does happen, occasionally).
An acquittal is almost always because we couldn’t prove the case beyond a reasonable doubt (which is a pretty high standard). In other words, the jury believes the defendant probably did it . . . but probably isn’t good enough.
With that in mind, I think your proposal would only be fair if the defendant could prove — say, by a preponderance of the evidence — that he was factually innocent.
Some days that Hobbesian war does seem like a better deal than Leviathan…
Yes.
I think that this is broadly correct, although it understates the novelty of the exclusionary rule’s role in the 4th Amendment somewhat. The 18th century rule (and somewhat older, although the case law on this is obviously highly limited because things that can’t be litigated don’t show up much in the courts) is a manifestation of the general principle that torture is an engine of state, not of law.
Through torture, one can extract false confessions. This means that torture as a way of evaluating judicial truth depends heavily on the objectivity of the judicial system. While it is not entirely obvious that this means that we shouldn’t torture as a part of the judicial process, that is the line that English law has taken, thanks in large part to Coke’s astonishing talent at myth making (you will note that Coke’s suggestion that the law abhors torture, and the claim that it has always done so, comes at the end of the height of torture in the British legal system).*
It’s important, then, that we not use torture to extract confessions, but that was not, at that point in history, felt to mean that we ought not to use torture to uncover plots. The difference is important; essentially, torture allows one to get the response that one wants. If one wants a confession, you can generally get that. If one wants the truth, that, too. Lying is hard work, and increasing someone’s cognitive load often makes it close to impossible.
A variety of factors come to strengthen the norm against self-incrimination during the 17th century, making it slightly surprising that it doesn’t appear in the English Bill of Rights, although it did make it into the Virginia Declaration of Rights and, obviously, the Bill of Rights.
It’s thus slightly surprising that the first time that you find the exclusion of a confession under the Fifth Amendment was in 1897. This becomes less surprising when one remembers how little Federal criminal law there used to be, and how unpopular its targets were. A little later, the 4th Amendments’ protections get exclusion, too (the wiki is wrong about Boyd; Boyd struck down the law on which a prosecution had been based, which had the same effect as excluding the condemned evidence, but which was not the exclusion of condemned evidence).
This still has relatively little impact on the courts. With the incorporation of the Fourth Amendment to the States, the Fourth Amendment became important to law that didn’t involve alcohol for the first time in 1949. Even then, the exclusionary rule wasn’t applied (states had to find a remedy, but most chose to award financial damages rather than having criminals walk free). In the 1961, the Fourth Amendment gets an exclusionary remedy made compulsory for the states. It’s not super recent (I feel that history ends and current events begin in 1977, and all my life there has been an exclusionary rule), but I wouldn’t call it ancient.
*Augustine, for instance, argues in City of God that a good Christian judge will have to torture some innocent people to death as part of the cost of arriving at correct judgments; for reasons that Foucault is excellent on in Discipline and Punish, the West, including the Church, has decided that the early Church’s views on this matter are not only wrong, but that they should be hidden and ignored, that it should be pretended that they never existed. The use of Protestant propaganda against torture, while hypocritical, was sufficiently effective that not only did it wipe out much of the memory of the Protestant practice of it, but it also made is unacceptable to acknowledge except in apology as a Catholic. Today we celebrate the introduction of the jury system in part on the basis that the pain inflicted by trial by ordeal was barbaric, while the introduction of torture as a part of that jury system (since the jury needed to explore the issue rather than relying on divine judgment) means that older celebrations of the jury system as improving probity, but not reducing pain, are far sounder.
This might help things, a bit.
They just claim they smelled alcohol and go with that. They can manufacture any “reasonable suspicion” on a moment’s notice and haul me in. If it turns out it was unlawful, then they do not get punished. I have been punished with the process.
I think this should be an amendment.
Then again, I think there should be some way to prevent loading up a billion charges on someone.
You seem to have a somewhat generalized opinion about law enforcement as a whole.
Your solution?
Conrad Black has written about this and how it puts way too much power in the hands of prosecutors. They get to offer a deal no rational person, even the most innocent, can refuse. I don’t think I’ve ever heard of a judge asking the accused what pressure was placed on him to accept the deal. We want them to have power, but not to this extent.
In the Utah case it would have been much easier for the officer, or detective if it had been a traffic stop. The driver must provide identification when it is requested. No problem with the warrant and no problem with the possession charge.
Even though the stop as it occurred might have been improper the warrant still stands, the possession charge becomes problematic and if the DA had any doubts about the stop the possession charge should have been dropped. The warrant arrest would still be a lawful arrest.
The pressure would have to come from his/her defense attorney, not the DA’s office.
Note:
As life sometimes gets in the way of Ricochet, we encourage members not to assume evasion when weekend and family are just as likely to be responsible.(Crickets.)
When the charges levied add up to 15+ years and the deal is for probation and a record (and taking away 2A rights, which I think is a priority for the state) the defense attorney becomes irrelevant. Charles Koch has talked about this as well from when his company faced 99 felonies but was given the offer to plead to 1 and pony up a few million dollars, and this was after spending years and multiple millions of dollars.
This is the Conrad Black piece I referenced earlier. It’s eye opening.
As I’ve written in these “pages” before, I agree that I’ve heard/read of this happening, but only at the federal level.
I have not seen this happening in my own (county) office. Ethically, unless you’ve got a reasonable likelihood of conviction, you should not be filing the charge.
I doubt that Charles Koch had an overworked public defender. The Feds are a different animal.
Multiple charges are not unusual in some criminal cases at the local level, but I’ve never seen one in my police experience that involved 99 felonies in a county court room.
That is the point he was making. Imagine facing the state when making median income. You cannot adequately defend yourself against its (nearly) unlimited pockets.
There’s a real conundrum in all this. What I learned from my experience is we have the system we need for criminals, but it has become wholly inadequate for the innocent. It is no longer a criminal justice system; rather, it has become a criminal administration system.
Lord Acton comes to mind.
As a former police officer the only legal advice I could give someone was stay out of trouble, if you’re in trouble then you need an attorney. It may surprise you but if someone told me that they were being called into a precinct for an interview I would tell them you better bring an attorney with you.
Sometimes [expletive] happens. Our system cannot differentiate.
Yeah, I get all that. But we’re not talking about evidence, here, we’re talking about the guy’s name.
So let’s walk your scenario through to it’s logical conclusion:
The judge throws the arrest out, because the police officer is in error in learning this individual’s name and looking it up to see if there’s an arrest warrant for it. But Strieff is in the courtroom, and now everyone in the room knows his name, and that he has an arrest warrant for which he’s not been arrested.
Will the judge allow the officer to re-arrest Strieff now that the officer has learned Streiff’s name through legitimate channels? If he does so, and I presume he would, what’s really been gained here? Or must the entire court proceeding be declared tainted evidence because of the exclusionary principle?
How far are we to take this principle?
Reading some of the comments, not all, there are some misconceptions about the law concerning unlawful detentions, and search and seizure.
Some private citizens are under the misconception that I had some obligation to explain the law and conduct a sidewalk seminar on probable cause and reasonable belief, that is not true.
Let’s take DUII stops. I need much more than the odor of alcohol. I had to make the stop based upon your driving behavior, observing your behavior, slurring words for example during the stop, field sobriety test, and then intoxilizer.
On a non-traffic crime stop (violation) I can only detain you long enough to obtain your ID, registration, and proof of insurance. Write the cite and let you go on your way. If you decide that you wish to ask me questions that’s okay, but at the point you have extended the detention.
Making statements based on what you think the law is, or what it should be is not the same as knowing the law.