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Jun 21 2016

Latest Warrant Decision by SCOTUS Ignores Reality

The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants. Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.

The case weakens the “fruit of the poisonous tree” doctrine which calls for all evidence to be excluded if the initial search or seizure was unlawful. The majority here found that the discovery of an active warrant “attenuated” any illegality of the initial stop. Normally, the attenuation doctrine applies to the defendant’s conduct (like struggling with an officer, spontaneously confessing to the crime or consenting to the continuation of the stop). Courts will then uphold the use of evidence obtained even though the initial stop was unconstitutional if what the suspect did then led to the evidence and therefore “cut off” or attenuated any wrongdoing by the police officer. But Justice Thomas said that he saw no reason to only apply attenuation only to the defendant’s conduct. He wrote that once the police officer found out the defendant had an active warrant, that discovery cut off or attenuated any earlier wrongdoing and justified the use of the contraband discovered. But the officer would not have learned of the warrant if he had not illegally and unconstitutionally stopped and detained Strieff in the first place. This decision will greatly broaden and expand the attenuation doctrine and will give police much more power to stop citizens on the street without probable cause.

A quick recitation of the facts: The case, Utah v. Strieff arose from police surveillance of a house in South Salt Lake, Utah based on an anonymous tip of “narcotics activity” there. Police officer Douglas Fackrell demanded Edward Strieff stop walking after Strieff had left the house and demanded Strieff provide his name to him. The officer made no attempt to ascertain how long Strieff had been in the house or to otherwise determine if Strieff had committed any crime within the house. The state later conceded Fackrell had insufficient grounds to demand this of Strieff, making the stop unlawful under well established law. Officer Fackrell however, then ran a check and discovered a warrant for a minor traffic violation. He arrested Strieff on the warrant, searched him and found a baggie containing methamphetamine and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful initial stop or whether they could be used as evidence given the arrest for the traffic warrant.

Justice Thomas, along with the four justices who joined his opinion, chose to bury their heads in the sand and adopt a rose-colored-glasses view of the world. First, the Court acknowledged that Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. The Court then also recognized and admitted that Officer Fackrell had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. That meant, according to the opinion, that Officer Fackrell “thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction” and therefore lacked a sufficient basis to determine that Strieff had doe anything wrong prior to stopping. But these two wrongs make a right because “Officer Fackrell was at most negligent.”

"Your papers, please"

“Your papers, please”

Maybe this officer was “at most negligent” in not knowing one of the most basic Constitutional rights afforded to a citizen of the United States – the right to walk freely upon the streets without being stopped to be asked for identification without probable cause. But maybe, just maybe, the officer didn’t care about Strieff’s rights and hoped he “would get lucky” and either have Strieff blurt out something useful or find something once he ran Strieff’s name. And where do you think police officers are most likely to “test their luck” once they are taught about this decision and its potential application? Rodeo Drive in Beverly Hills perhaps? Or maybe Sutton Place here in NY? You know, somewhere where they may mistakenly pick someone with money, power and influence who will complain to someone who will listen about this seemingly minor intrusion. Or rather, will they pick the ghettos and projects of poor neighborhoods, where folks know better that to try and complain about police abuse of a minor or even a major scale? My money’s on the latter, how about yours? And by coincidence, where do long-kept statistics establish where most people stopped and given summonses and tickets for minor infractions which can lead to warrants? You guessed it those very same neighborhoods.

If this potential for huge abuse of the expanded police power given by this decision was lost on Justices Thomas, Alito, Roberts, Kennedy and Bryer (surprisingly and discussed further down) it was not lost on the dissents, written separately by Justices Sotomayor and Kagan and both of which were joined by Justice Ginsburg. I won’t discuss Kagan’s decision because this post is already getting long in the tooth and because Justice Sotomayor’s is the one that hit the nail on the head and saw past how easily pretext and contrivance would justify unlawful stops in the future.

In a blistering dissent that cited W. E. B. Du Bois, James Baldwin and Ta-Nehisi Coates, Justice Sotomayor rang the alarm bell over the court’s vast expansion of police power:

“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 warrants — even if you are doing nothing wrong.”

But even better and more important than the above language was her explanation of the obvious ramifications of this expansion of the esoteric attenuation doctrine would have on the poor and minorities. She reserved her most personal reflection for a part of her dissent which she specifically stated she wrote only for herself, and which clearly set out in detail the dangers and indignities that often accompany police stops:

“For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them. 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.”

The only way this statement could have been made more powerful and timely is if she followed it with #BlackLivesMatter. It immediately harkened me back to her confirmation hearings when she endlessly had to explain her now famous “wise Latina” comment tht she made during a law school commencement ceremony: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” She may have gotten flak for it but it proved incredibly prophetic with this decision. How else quite frankly to explain Justice Stephen Breyer’s joining of the conservative wing for this decision? Justice Breyer failed to see what Justice Sotomayor saw – how justifying an illegal stop by the subsequent discovery of a warrant will lead to unfettered temporary detention on the public streets of lawful citizens – most of whom will be poor, Black or Latino.

Like most Supreme Court decisions, this case will have an impact far greater than the small, criminal matter involved. It not only expands police power, it will likely result in disproportionate unconstitutional stops of citizens in poor, minority neighborhoods.

Read the full decision HERE

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4 comments

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  1. Sam Samuel Sammy Samstone IV

    “But maybe, just maybe, the officer didn’t care about Strieff’s rights and hoped he “would get lucky” and either have Strieff blurt out something useful or find something once he ran Strieff’s name.”

    Ding ding ding. Winner.

  2. Christine morrison

    http://www.noremedyinlaw.org
    Please read Pgs 6-9 book to follow- we have no rights against the courts illegal rulings.
    The judges,are politically protected.

  3. No longer an aspiring attorney

    Hi attorney, loyal listener here…my question is, did the defendant have to provide identification to the officer?

    1. Oscar Michelen

      No you have no obligation to provide ID unless officer has reasonable suspicion that you are engaged in criminal activity

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