Utah v. Strieff – can police now stop and search you without probable cause?

In Utah v. Strieff, decided June 20, 2016, the U.S. Supreme Court apparently decided that incremental erosion of our Fourth Amendment rights was not fast enough and has now given the green light for police to stop and search individuals without probable cause.  Justice Sotomayor in her dissent explains the effect of this decision without mincing words:

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. 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. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

The case is about the exclusionary rule – when the state violates a person’s constitutional rights, often the only practical remedy and the only thing that deters police from future similar misconduct is the exclusion of the evidence.  Basically, when the police cheat and take shortcuts that violate the Constitution’s protections, they don’t get to reap the benefits by using the evidence they found.

In this case, the Court held that when an officer illegally detains a person without probable cause, finds contraband, and also learns (after the illegal detention) that the person has an outstanding warrant, the evidence found is admissible and the exclusionary rule does not apply.  The officer in this case received an anonymous tip that there was drug activity at a house, watched the house, and saw Strieff leaving the house.  As Strieff walked away through a nearby parking lot, the officer detained him, asked him what he was doing at the house, discovered drugs on his person, and also discovered that Strieff had unrelated outstanding warrants.

The Court acknowledges that the officer did not have probable cause to detain and search Strieff.  The Court also acknowledges that the officer would not have found the drugs or the outstanding warrants but for the officer’s unconstitutional detention.  The majority opinion then goes on to perform some incredible legal acrobatics to justify their decision not to exclude the evidence found.

The exclusionary rule can apply to 1) primary evidence found as a direct result of the officer’s illegal search and seizure; and 2) evidence found later that would not have been found but for the officer’s illegal search – the “fruit of the poisonous tree.”  There are exceptions to the exclusionary rule: 1) the independent source doctrine (evidence obtained from a separate source independent of the officer’s illegal search is admissible); 2) the inevitable discovery doctrine (the evidence would have been found anyway even if the officer had not conducted the illegal search); and 3) the attenuation doctrine (the connection between the illegal search and the discovery of the evidence is remote or there is an intervening circumstance).

The Court reasons that, although the warrant was unconnected to the illegal detention, once the officer found the warrant he then had an obligation to arrest Strieff.   “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon, 468 U. S. 897, 920, n. 21 (1984) (internal quotation marks omitted).”

The Court then finds that if the officer has an obligation to arrest the person, then the person will have to be searched, therefore the inevitable discovery doctrine applies.  The Court has created a new rule with this case – if a person has an outstanding warrant, then the fact that the warrant exists will excuse the officer’s misconduct and evidence obtained illegally will not be be excluded.

The Court naively explains why the officer’s conduct was at most negligent, and it was not flagrant or purposeful misconduct.  This is an absolutely ridiculous statement – on the face of it, and relying on the facts admitted in the Court’s opinion, the officer purposefully stopped and searched a person that the officer knew he did not have probable cause to stop and search.  They can’t credibly say it was not purposeful or flagrant.  What they are really saying is, “we know the officer broke the rules, we know the officer violated this person’s constitutional rights, and we are ok with it because the ends justify the means.”

Clearly, once the officer found the warrant he was under an obligation to arrest the person.  And the person then would have to deal with the subject of those outstanding warrants.  But that does not excuse the officer’s conduct.  Knowing that the officer will not be disciplined or reprimanded for his conduct and knowing that the officer cannot be successful sued for his conduct, there is nothing left to deter the officer’s conduct but the exclusionary rule.

The Court implies that the threat of civil liability will be sufficient to prevent police from making unconstitutional searches hoping to find outstanding warrants – this is either incredibly naive or simply dishonest.  Civil liability is not a deterrent to police, because police know that the courts will protect them, as this Court did.  It is difficult and often impossible to bring a civil action against police for constitutional violations.  In some cases it is because the courts have made it difficult or impossible with the myriad of rules that have been created to prevent citizens from suing the government, and in other cases it is a matter of damages.  No lawyer will file a lawsuit based on a constitutional violation where there is no physical injury and where drugs were ultimately found.

You might think that police simply would not violate the rules, or that if they did their departments would take action to sanction those officers.  You may think that departments provide training to their officers to ensure they do not commit constitutional violations.  The reality is that there will be memos circulating in police departments based on this case, and this case will be incorporated into police training – not to encourage the officers to respect the Constitution but to teach them how to get around the Constitution with the Court’s apparent approval.

Police can now stop anyone that they want with or without probable cause, and if they find an outstanding warrant they will be forgiven and the case will go forward.



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