SCOTUS: It’s OK If the Police Unlawfully Stop You If There Was a Warrant Out for Your Arrest
Apparently “negligently” violating your constitutional rights is totally fine.
Monday, the Supreme Court issued a 5-3 ruling in Utah v. Streiff that’s raising eyebrows for its implications for Fourth Amendment protections.
In Streiff, the defendant was stopped and questioned by a police officer in a parking lot near a house that an anonymous tipster had claimed was being used to sell drugs. The officer asked the defendant for his identification and called in to a police dispatcher, who told the officer that Streiff had an outstanding warrant out for his arrest for a traffic violation. The officer arrested Streiff and searched him, finding methamphetamine and drug paraphernalia.
The main legal enforcement method for the Fourth Amendment’s prohibition on illegal searches and seizures is the “exclusionary rule,” which stops prosecutors from using any evidence that’s obtained from police activity that is found to violate the Fourth Amendment. The Court has long interpreted this as excluding not just “primary evidence obtained as a direct result of an illegal search or seizure,” but also “evidence later discovered and found to be derivative of an illegality,” as the Court wrote in Segura v. United States, a 1984 case.
In his defense, Streiff argued that the initial stop lacked probable cause, so therefore any evidence seized during the arrest should be excluded. It’s well established that police officers have the authority to search people when they are arresting them (generally referred to as a “search incident to arrest”), in no small part due to the safety issue, to determine if a person has anything that could be used as a weapon against the officer or other officers or inmates at the jail. Streiff’s position was that because it was an unconstitutional investigatory stop when the officer first questioned him, everything that followed after was also illegal and should be excluded.
The Court disagreed, finding that the discovery of a “valid, pre-existing and untainted arrest warrant” was enough of “an intervening circumstance” to forgive an illegal stop.
Wrote Justice Clarence Thomas for the majority:
[E]ven when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits… for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.
Thomas continues, noting that this “attenuation doctrine” operates to exclude evidence where the police misconduct is “purposeful or flagrant,” not merely 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 shortterm visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so…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. And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest. [citations omitted]
Thomas also notes that there was “no indication that this unlawful stop was part of any systemic or recurrent police misconduct,” but rather “an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.” Accordingly:
[W]e hold that the evidence discovered on Strieff ’s person was admissible because the unlawful stop was sufficiently attenuated by the preexisting arrest warrant. Although the illegal stop was close in time to Strieff ’s arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff ’s arrest is a critical intervening circumstance that is wholly independent of
the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.
Justice Sonia Sotomayor issued a scathing dissent against the idea that “a valid warrant will clean up whatever illegal conduct uncovered it,” and challenges the argument that the warrant check was necessary for officer safety, since the officer had stopped Streiff in a public parking lot, without suspecting him of committing any crime, and acknowledged that he did not fear Streiff. “[T]he officer’s sole purpose was to fish for evidence,” Sotomayor writes, distinguishing Streiff’s situation from highway stops, noting the need to ensure safe and responsible drivers:
We allow such checks during legal traffic stops because the legitimacy of a person’s driver’s license has a “close connection to roadway safety.” A warrant check of a pedestrian on a sidewalk, “by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’” Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else.
Sotomayor also scoffed at the majority’s position that what happened to Streiff was “isolated” conduct, noting that the states and federal government databases include over 7.8 million outstanding warrants, “the vast majority of which appear to be for minor offenses.”
“Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause,” she wrote, calling the majority’s opinion a “remarkable proposition,” to say that [t]he mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.”
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Comments
Apparently Latino Justice Sotomayor was the only one wise enough to issue a dissent.
Amazing Sotomayor is right – once.
This decision has horrible implications.
Slowly the court begins to recognize that reality trumps the court imposed exclusionary rules.
The court is SUPPOSED to rule on the constitution not their own made up rules.
Justice Thomas is correct. Sotomayor says “Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else.” I say surely we would, so long as it can be done without undue inconvenience to the innocent passersby who don’t have outstanding warrants. If the police could put a camera on the street and have a facial-recognition program look for known fugitives, pinging them only when it found one, on what possible grounds could anyone object? There is certainly no constitutional right to evade an arrest warrant merely because most policemen don’t know ones face well enough to recognize on sight!
Nor has there ever been a constitutional right to get away with a crime merely by hiding the evidence where it can’t be found without an unconstitutional search. That people can do so has always been a flaw in our constitution, a price we have been willing to pay for the liberty of being free of such searches. In other words, we don’t want police to do illegal searches, and we accept that this means some criminals will get away with their crimes. That seems to us a better outcome than allowing the police to search whomever they like, both innocent and guilty.
Thus if the police do illegally search someone and find evidence of a crime, the discovery of that evidence does not itself violate any of his rights, and as far as the constitution is concerned there is no reason not to use the evidence to convict him.
The excusionary rule is not a constitutional rule, it’s something the Supreme Court imposed of its own accord, in order to deter police from doing illegal searches. It’s a good rule, but since it’s the Court’s own invention the Court is entitled to say how it operates. Since its purpose is to deter the police from flagrantly breaking the law, it makes no sense to apply it when they didn’t do that.
In this case we don’t even reach that point, because by the time the search happened the policeman knew that the person was a fugitive, and had every right to arrest him. Sotomayor says he should not have arrested him because he should not have known that he was a fugitive. Had he not illegally stopped the person in the first place he would never have known about the warrant, and would therefore not have arrested him, and would therefore not have searched him. But that’s nonsense. Once he ran the warrant check, which itself was not a violation of anyone’s rights, everything he did was by the book; why he ran it is irrelevant. He could have done it on a whim, so the fact that he did it incident to an illegal stop shouldn’t invalidate it.
Agreed. Officers routinely run the license plates of vehicles (moving or not) without “probable cause” merely due to the innate suspicions of the officer. Many outstanding warrants are enforced in this manner. Justice Sotomayor would have the police perform their duties with their eyes closed.
“If the police could put a camera on the street and have a facial-recognition program look for known fugitives, pinging them only when it found one, on what possible grounds could anyone object?”
On the grounds that such a system of surveillance is subject to abuse, and the government is not to be trusted. And the grounds that such a system would permit the government to track the whereabouts of literally anyone, without probable cause. True, officers can stand on street corners and observe for themselves, but officers are 1.) not omnipresent; 2.) incapable of identifying everyone who passes by; and 3.) cannot possibly make a record of every person who passes by (if the foot traffic is sufficiently heavy). Although a person walking down the street is in public, he or she doesn’t necessarily surrender his or her anonymity, if it is the desire of the person to remain anonymous. Persons walking in public are certainly “in plain sight,” but in plain sight of what? Does the term refer to a machine or computer, or to the plain sight of a human being? I believe if refers to the plain sight of a human being, which is why police need a warrant to surveil a suspected drug grow with infrared detection equipment, or to eavesdrop by electronic means upon a conversation – neither of these methods of intelligence gathering rely upon an officer’s naked senses, and the objects of these intrusions are therefore not “in plain sight” (or “plain hearing”). (For the same reason, I find the use of drug sniffing dogs objectionable if done without a warrant. If the officer needs an augmentation, in this case the use of a dog or other “sniffer,” to his natural abilities to sense something, then that something is not within his natural ability to detect it and he should need a warrant, just as if he wanted to electronically intercept a phone conversation that was not otherwise within earshot.)
On the grounds that such a system of surveillance is subject to abuse, and the government is not to be trusted.
That is not a valid constitutional objection.
And the grounds that such a system would permit the government to track the whereabouts of literally anyone, without probable cause.
Why should it require probable cause. There is no such thing as a right to be invisible or anonymous. No such right has ever been recognized by our legal system.
Although a person walking down the street is in public, he or she doesn’t necessarily surrender his or her anonymity, if it is the desire of the person to remain anonymous.
Um, yes, he does. By definition, going out in public means surrendering any expectation of not being seen or recognized.
I believe if refers to the plain sight of a human being, which is why police need a warrant to surveil a suspected drug grow with infrared detection equipment, or to eavesdrop by electronic means upon a conversation – neither of these methods of intelligence gathering rely upon an officer’s naked senses, and the objects of these intrusions are therefore not “in plain sight” (or “plain hearing”).
The only reason these are not allowed is because the subject is in his home, where he has a reasonable expectation of privacy, and routinely engages in lawful activities that he doesn’t want seen. In other words the police can’t use infrared to see your grow lights because they would also be seeing you in the bath and on the toilet.
There is no right to conceal evidence of a crime in ones home; that one can do so is merely an unfortunate side-effect of the right to hide ones lawful activities. Similarly there is no right to conceal a criminal conversation, and the reason the police can’t listen in without a warrant is because they’d also be listening to the subject discussing confidential business, or having phone sex.
I don’t have a problem with this.
Surprised Sotomayor is suddenly concerned about Constitutional rights.
She is. For
colored peoplePeople of Color.Um, Edward Strieff is a Person of Pallor. In fact Sotomayor made a point of it: “The white defendant in this case shows that anyone’s dignity can be violated in this manner.”
You wouldn’t be surprised if the guy’s Second Amendment right was involved. . . .
I wrote an essay about two decades ago saying the “exclusionary rule” was one of the stupidest things ever propounded by the Supremes, as it obviously “punished” society for the bad acts of its police, instead of punishing the police individually.
It still is.
Thomas is right.
The problem is, how can the courts make sure that police who deliberately conduct illegal searches are punished? The policemen’s superiors are not going to do it of their own accord.
“You bad policeman. How dare you find the evidence that will convict a serious wrongdoer and make the taxpayers safer? Not only are you suspended (with pay) for two weeks, but you are banished for the duration from the jurisdiction where you committed your offense. Here are two tickets to Hawaii. I hope that while sitting on the beach you will reflect on your misdeeds and come back suitably chastened. And let all your colleagues learn what happens when a policeman so misbehaves.”
I know you are not suggesting that we could not fashion a very effective remedy for bad cops doing illegal things.
I just know it…
It depends who “we” is. I can’t think of a better remedy that the Supreme Court could have fashioned. Can you?
Absolutely, if you allude to the “exclusionary rule”. It’s one of the dumbest damn things ever.
How about making bad cops liable under criminal or civil law (or both) for their badness?
Bad cops are already liable under criminal law, and where they knew the law and deliberately violated it they’re also liable under civil law. They’re also subject to internal discipline by their superiors. But that doesn’t mean anything if prosecutors choose not to prosecute them, departments choose not to discipline them (or merely pretend to, as above), and victims can’t recover significant damages (how much damage does the victim of an illegal search actually suffer?)
Had prosecutors made a practise of seriously prosecuting bad cops the judiciary might not have seen the need to step in. But they didn’t, and it’s natural that they didn’t because they were happy for the cops to do this. They don’t naturally see such cops as bad in the first place, even if they pretend to.
So I repeat my question: what better remedy than the exclusionary rule could the Supreme Court have fashioned? It has no jurisiction over police departments or prosecutors. It can’t order that policemen be prosecuted or disciplined. Its only power in the matter is to make rules that all courts must follow, so it used that power. It said that the courts would no longer accept such evidence, therefore the police no longer have an incentive to find it.
Here’s an idea that might work, but it’s not something the judiciary can do. A legislature can create something like the nuisance suits they have in California over things like disabled access. They could allow anyone who feels offended by police misconduct to bring suit, and to recover statutory damages from the policeman or from his department. This would encourage busybody SJWs to get involved and hunt down misconduct.
You’d have to have some strong provisions to discourage frivolous suits, such as a risk that the busybody may have to compensate the cop and his department for their time, but if successful suits are able to hurt the department, then the department will have a strong incentive to make sure its officers obey the law.
Once a legislature does this, it could apply to the courts to repeal the exclusionary rule in that jurisdiction.
True, but it’s necessary to prevent the rewarding of bad acts. It’s an incentive for the police to play by the rules. What would police not do to make an arrest if they knew no matter how many constitutional prohibitions they violated that their arrest and evidence would stand up in court?
It would be nice if there were some penalties against police for “illegal stops” and the like. The exclusionary rule has its problems, but at least it gave police an incentive to play by the rules.
Am I the only one here concerned about police misbehavior?
How would you implement such penalties, absent the exclusionary rule? If bad searches yield usable evidence then prosecutors and police commanders are naturally inclined to be happy for them to continue, and to reward the cops instead of disciplining them.
Civil suits are not a remedy unless you not only lifted qualified immunity but also made serious punitive damages available; but even that wouldn’t be enough if innocent victims were unaware that the search even happened, and guilty victims (i.e. evidence was found) got no sympathy from jurors.
Oops, I submitted that too early.
That’s why the court has not overturned the rule. Not even Thomas has any problem with the rule. But since its purpose is only to deter cops from deliberate bad behavior, it makes no sense to apply it when there hasn’t been any of that.
Here’s something bizarre: Sotomayor seems to believe that states and municipalities deliberately allow huge numbers of outstanding warrants to accumulate, for the purpose of giving policemen an excuse to harass people. I don’t know how else to interpret section 3B of her dissent.
Beside the general tin-foil-hatness of this idea, one major flaw I see here is that such a scheme, if it existed, would only give police an excuse to stop people who actually had a warrant out for them; it wouldn’t help them if the person they stop hasn’t done anything, and therefore has no warrants out on him.
Why was the stop illegal? They had a tip that drug dealing was going on there. How is that different from stopping drivers on New Years Eve for routine drunk driving screening?
They’re driving on a public road. That’s the difference. If a policeman has no reasonable suspicion that a person has committed a crime, he has no right to insist that the person stop and talk to him. He may, of course, politely ask the person to stop and answer any questions he might have, just as anyone else may do so; but he must make it clear that the person is free to ignore him and keep walking.
Sotomayor also scoffed at the majority’s position that what happened to Streiff was “isolated” conduct, noting that the states and federal government databases include over 7.8 million outstanding warrants, “the vast majority of which appear to be for minor offenses.
Yes most of the warrants are for minor offenses , because more minor offenses are committed and the major offenses are given higher priority .
The Wise Latina