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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 confused as to why the stop was illegal. We’re supposed to believe that the cop had no reason to believe Strieff had drugs on him, but coincidentally he did?
Good questions. Never seen this same scenario before (though I’ve seen similar scenarios where evidence was tossed, and we had to figure out the next move).
The original arrest warrant is still valid and enforceable.
Guessing here: I imagine that the judge might give Strieff the opportunity to post bail on that warrant; if not able, the judge would take him into custody, and that case (the warrant case) would go forward.
What’s gained here?
It was illegal because, based on the information he had, Officer Fackrell lacked sufficient reasonable suspicion that Strieff was involved in criminal activity. Even the prosecution conceded this.
Justice Thomas: if there has been more evidence that Strieff was only there to buy drugs, it would not have been a problem.
One sign that a person is involved in drug-buying activity is when their visit to the location in question is quick (i.e., enough time to buy the drugs).
However, in this case, the officer did not know how long Strieff had been there.
For this reason (Thomas), it still would have been OK for the officer to initiate a voluntary conversation with Strieff, wherein the officer could try to find out how long Strieff had been there.
Instead, however, based on nothing more than the fact that Officer Fackrell had seen Strieff leave this house after a stay of unknown duration, the officer demanded that Strieff stop and answer questions.
According to the case law in this area, that was not sufficient justification to detain Strieff.
And, no, we can’t reverse-engineer the case and say, “Well, we did find drugs on him, so, see?” We have to base the decision on the information the officer had at the time of the detention.
That is why you have notebook. A short note: observed subject enter house at 1210 hours, then a general clothing and physical description. Observed same subject exit the house at 1220 hours. Stopped subject at 1230 hours.
I didn’t see the Miranda Warning or precedents on search and seizure as a detriment to working as a police officer. It had the opposite effect. If I had observed all the rules it made an arrest I made airtight. I took a class on search and seizure that was taught by one of the assistant DA’s after I completed the police academy that I paid for out of my own pocket.
I lost one traffic violation case in traffic court, I was never on the losing end of a criminal case. It was always up to the DA’s office to finalize charges. They were the experts in the courtroom and I never questioned their judgement, I was the street guy and we each knew what our roles were.
As your experience shows
Sorry for have a family life and not getting back on the site. I was unaware you were going to issue a challenge.
If a police lacks sufficient reasonable suspicion that I am involved in a crime, and detains me for any reason, I should be compensated.
A mere arrest can destroy a life. The police have the power to do that on a whim.
I have seen too many clients do something minor and sit in jail for close to a year. I have seen too much damage done by the system.
Now, as to what I propose:
I am American Citizen. The assumption at all times should be that I am not breaking the law. But no, we now live in a circumstance where I have to live in fear of attracting the attention of the system, even when I am not doing anything wrong. If it can happen to Conrad Black, or TKP, it can happen to anyone.
What puzzles me is why this case went to the US Supreme Court. The Utah supreme court suppressed the evidence. Normally, a state supreme court can give more rights to criminal defendants than federal courts do. I fully expect that if a similar case came up in my state, Mass, they would find that article 14 of the state constitution would require suppression of the evidence.
For example, NY. v. Belton, which held that police do not need a reason to order people out of a vehicle after a proper motor vehicle stop, if the order is done at the start of the stop. In Mass, you need to articulate a reasonable basis to do it. In almost all instances, the federal rules are much looser than the state rules.
The only reason this got justified after the fact, is because he had a valid warrant. You can hardly call this police harassment for enforcing a warrant issued by the court.
Maybe the moral of this story is, if you want to visit your local crack house, be sure to pay your parking tickets.
How the heck would police canvass for witnesses under these conditions? Arrest them?
Only in America due criminals get off because the officer breaks the law. The whole idea that evidence(the truth) should be thrown out because a government employee broke the law in obtaining it is perverted and insane. We have these silly case laws of weather the truth can be used to punish someone based on other persons actions. If you break the law and the constitution you should go to jail and be punished for it.
That is the real problem we have in this nation, bureaucrats who can break the law and get away with tyranny. If citizen were allowed to criminally prosecute on their own dime (at lest get one chance to present evidence to a grand jury) if they had been directly wronged we would have a lot less police misconduct.
If governmental workers were actually held to the same stander and punishment as private citizen and we did not have to rely on public prosecutors for 100% of all criminal cases there would be no issues with the guilty going to jail over evidence obtained thru illegal means because the both would be criminally punished.
Or: If you’re going to illegally stop someone, hope they have a warrant for a traffic infraction.
State constitutions often provide greater protection. In this case, the Utah courts based their holding entirely on the Federal Constitution.
Seems inefficient.
Or the cop can just accidentally type in the wrong name on the computer, the name of someone with a known warrant. Then they could claim a good faith “clerical” error and proceed with the violation of civil rights. Good faith “errors” are given a pass. If they are indistinguishable from fraud/abuse, then gosh-darn-it, its gotta slide.
Not for the rest of us. Good faith errors in accounting are fraud. Good faith error in not knowing some regulation is still a crime.
Why do the police get a pass when us “Civillians” don’t?
Warrants are issued by a judge or magistrate. They are a stand alone court order to arrest someone. They are not written by a police officer. Some warrants are written for Failure to Appear in court, FTA for short. Some are written after a Grand Jury decision to prosecute someone for a crime.
Police officers are allowed discretion to write or not write cites for a violation, in the case of a warrant a police officer has no choice in carrying out the arrest.
I cannot speak for every LEO but usually the procedure is to confirm the warrant is still active. If the warrant is active the dispatcher will ask the officer if the subject is in custody. If the answer is yes then dispatch will contact the court to confirm that the warrant has been executed.
Warrant cards are sent to the police department and in some cases, in fact in most cases a subject is known to the police and they will look for that person, as time permits. The search is not always successful, but at some point they will be found.
Multiple FTA’s are not uncommon. One person I arrested for DUII had three years of FTA’s on my arrest. As far as I know he never appeared in court. He was arrested quite a few times on FTA warrants.
And also fraud an abuse are all to often give a pass.
Man points gun at couple. Demands money. Wife: “Honey, just give him the money.”
Who applied to pressure in this example? Piling on bogus charges that can ruin a life is enormous pressure, regardless of what your defense attorney tells you to do.
I made a distinction between the Feds and local law enforcement in an earlier comment. The Feds file multiple charges in far more cases than local DA’s do.
Bogus charges don’t have to be multiple charges.
Face facts, our “Justice system” is a joke. Ruined by judges, mostly, but aided and abetted by LEOs. Remember the speedy trial? That is a constitutional right that is long-since forgotten.
Not to mention defense attorneys who ask for delays. Perhaps a specific example of the joke you mention would be helpful, or am I not allowed to indulge in generalties as you are?
Oh well tomorrow is another day. I await in breathless anticipation for a pdf of a joke that police have made of speedy trials.
The silence of crickets chirping fill the night with the sound of one hand clapping.
I gave you a specific example of the joke. Constant delays in trials by either side make speedy trials impossible.
Scroll up and read what I actually wrote.
If you want a specific example of how LEOs have “aided and abetted” our Justice system becoming a joke, I’ll point you to civil forfeiture. LEOs who participate in that are no better than highway robbers. In many cases, highway robbery is exactly what’s they’re doing.
Specific enough?
I disagree with seizure before trial. It is done all the time by the IRS in tax cases. There are criminal statutes that allow for both imprisonment and a fine if convicted, but the key word is convicted.
Once again these rules begin in a state legislature and in Congress. Most Americans probably have no idea who their state legislator’s are, or for that matter who their Congressional delegates are. Judges, and your county sheriff are elected. County commissioners and city commissioners are elected.
Unfortunately most Americans find politics boring, especially local politics and that is strange. Strange because these people take a pretty good chunk of their paycheck.
This filters down to your local school board as well. How important are they? Well when the screaming started about transgender bathrooms I wonder how many of those people could name anyone on their school board.
But they’re gleefully, and vigorously, enforced by LEOs, despite their clear unconstitutionality.
The Nuremburg defense is no defense, remember. As far as I’m aware, there’s no requirement that assets be seized, and no consequences to the LEO if he doesn’t. Aiding and abetting…
Really “gleefully”? In your first paragraph I assume that what is clearly unconstitutional is a law. There is no question that bad law is written and that is why appeals are heard in a courtroom.
Now perhaps Americans will at some point will actually research a candidates qualifications and beliefs, especially their beliefs. They might actually take a look at their voting records. I’m not going to hold my breath waiting for this to happen, but it would be nice.
Yeah, I think that’s totally fair. Things they spend the stolen money on?
Civil forfeiture has thoroughly corrupted the nation’s police.
Any PD could stop doing this at any time. Blaming it on the “higher-ups” is a cop-out, pardon the pun.