June 20, 2016 3:36PM

“So Little Justification that the State Has Never Tried to Defend Its Legality”

Today, the Supreme Court struck yet another blow against the Fourth Amendment and the exclusionary rule. The case, Utah v. Strieff, involved a man who was illegally stopped outside of a suspected drug house and investigated for possible criminal activity. Mr. Strieff had an outstanding warrant for a minor traffic offense and was arrested. The search that resulted from the arrest turned up drugs. The question at issue was whether the undisputed illegality of the stop would render the drugs found inadmissible as evidence because of the exclusionary rule. In a 5-3 decision written by Justice Clarence Thomas, the Court decided that the “discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized” and thus the drug evidence could be used against Mr. Strieff.

In short, this case incentivizes police officers to break the law to make stops looking for drugs and contraband. As the late William Stuntz discussed in his book, The Collapse of American Criminal Justice, the way police read Supreme Court decisions is similar to a How-To blueprint to get around individuals’ constitutional rights. As Justice Elena Kagan ably notes in her dissent, today’s decision says that so long as there is an arrest on a warrant made from a bad stop, anything officers find as a result of that stop is fair game for prosecution.

Justice Sonia Sotomayor writes in her dissent:

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 warrants—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 arresting you on the warrant. 

This practice isn’t a minor issue affecting a small population. Justice Sotomayor points out that between the federal government and the states, there are over 7.8 million outstanding warrants, a large portion of which appear to be for minor infractions such as unpaid parking tickets or civil fines. It certain areas, the outstanding municipal warrants engulf more than half of the local population. For example, she cited the Department of Justice’s report on Ferguson, Missouri that found 16,000 of the city’s 22,000 residents had outstanding warrants. Justice Sotomayor’s dissent is an impassioned and practical argument against the racial profiling this case will almost certainly encourage across the country.  

Justice Kagan’s dissent is no less damning, though she gives a more technical analysis of the relevant jurisprudence that allows for exceptions to the exclusionary rule. To be kind, she finds the majority opinion wanting. In fact, she goes through the argument with the metaphor of a baseball player at bat, and the majority strikes out under the three-part inquiry in Brown v. Illinois, 422 U.S. 590 (1975). Although the Strieff opinion was written by Justice Thomas, perhaps the metaphor was a thinly veiled jab at the Chief Justice’s famous quip about justices calling balls and strikes in cases rather than, say, going to bat for the team in blue.

Justice Kagan writes:

“The majority chalks up [Officer] Fackrell’s Fourth Amendment violation to a couple of innocent “mistakes.” But far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality. At the suppression hearing, Fackrell acknowledged that the stop was designed for investigatory purposes—i.e., to “find out what was going on [in] the house” he had been watching, and to figure out “what [Strieff] was doing there.” And Fackrell frankly admitted that he had no basis for his action except that Strieff “was coming out of the house.” [Citations removed]

The upshot of this case will be an increased reliance on the already overused and intrusive investigatory stops. As I recently published in the Case Western Reserve Law Review, such aggressive and inherently antagonistic policing will likely undermine police legitimacy, making policing harder and communities less safe. More people will be arrested and searched because police have been granted a Court-sanctioned way to get into people’s pockets.

You can read the opinion and both dissents here. My law review article, “Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy” can be read here (PDF).