Once Again, The Supreme Court Stabs At The Heart Of The Fourth Amendment
The Supreme Court has once again issued a ruling that further chips away at the protections of the Fourth Amendment.
In a ruling earlier this week that is raising civil liberties concerns from many corners, the Supreme Court ruled earlier this week that evidence obtained as a result of an illegal stop may still be used if the parties being searched were found to have outstanding warrants:
WASHINGTON — 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.
Justice Thomas’s opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”
“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time,” she wrote. “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.”
The case, Utah v. Strieff, No. 14-1373, arose from police surveillance of a house in South Salt Lake based on an anonymous tip of “narcotics activity” there. A police officer, Douglas Fackrell, stopped Edward Strieff after he had left the house based on what the state later conceded were insufficient grounds, making the stop unlawful.
Officer Fackrell then ran a check and discovered a warrant for a minor traffic violation. He arrested Mr. Strieff, searched him and found a baggie containing methamphetamines and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful stop or whether they could be used as evidence given the arrest warrant.
“Officer Fackrell was at most negligent,” Justice Thomas wrote, adding that “there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion.
In a dissent that cited W. E. B. Du Bois, James Baldwin and Ta-Nehisi Coates, Justice Sotomayor said the court had vastly expanded 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,” she wrote. “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,” she continued, “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.”
Justice Sotomayor added that many people were at risk. Federal and state databases show more than 7.8 million outstanding warrants, she wrote, “the vast majority of which appear to be for minor offenses.” There are, she added, 180,000 misdemeanor warrants in Utah. And according to the Justice Department, about 16,000 of the 21,000 residents of Ferguson, Mo., are subject to arrest warrants.
Justice Ruth Bader Ginsburg joined most of Justice Sotomayor’s dissent, along with all of a separate dissent from Justice Elena Kagan. But Justice Sotomayor reserved her most personal reflection for a part of her dissent in which she wrote only for herself, setting out in detail the dangers and indignities that often accompany police stops.
“For generations,” she wrote, “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,'” she wrote. “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.”
Writing at SCOTUSBlog, Law Professor Orin Kerr summarizes the opinion in a post that is far too detailed to properly summarize without copying in its entireity, and has this to say about its potential impact:
In a practical sense, today’s opinion is important. I think Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.
An important question is whether trial courts will be open to developing a record on the purpose and flagrancy of violations and whether they focus more on the burden of proof. In theory, the burden of proving attenuation is on the government. But in practice, I think a defense attorney needs to build up a record to show purpose and flagrancy. If the courts presume that officers are acting in good faith, defense lawyers need to put in evidence at suppression hearings indicating that this may be wrong.
It’s hard to understate just how much damage the Court has done to the Fourth Amendment and its prohibitions against illegal searches and seizures. There is no question that the initial stop in this case was illegal because the officer in question lacked probable cause, or even reasonable suspicion, that a crime had been committed. That fact alone should be the end of the inquiry in and of itself, because an illegal stop is supposed to mean that anything discovered as a result of that stop is considered inadmissible against the Defendant. This is what has come to be known as the “exclusionary rule,” and while the perception among most lay people is that this rule is largely an invention of the Supreme Court during the era when Earl Warren served as Chief Justice, and there is some truth in that regard. In reality, though, there is a long history of rulings in both American and British Common Law of court’s ruling that illegally obtained evidence cannot be used at trial. It’s a rule that makes sense because it is, in reality, the only way that courts can send a signal to law enforcement that violations of the Fourth Amendment will not be tolerated and that there will be consequences for the violation of a Defendant’s Constitutional rights. The alternative to an exclusionary rule would be to rely upon the ability of individuals to sue law enforcement officers for the violation of their rights, but that right, which does exist under Federal Law is of little use to a Defendant convicted based on illegally obtained evidence and to a public that would have to live with the possibility of law enforcement acting illegally and using whatever evidence they find however they wish.
Unfortunately, the reality of a strong exclusionary rule protecting the American people from rogue police and prosecutors looking to support charges regardless of what the Fourth Amendment says has given way to politics and what clearly has been a pro-police bias in the Federal Courts for some tim now. For at least the last three decades, the Supreme Court has been chipping away at the protections of the Fourth Amendment, by increasing the exceptions to the rule and providing more and more discretion to police and prosecutors. Some of these exceptions, such as a generally exception that applies when the evidence is clear that an officer was relying in good faith on evidence obtained from another source or records that turned out to be incorrect makes sense because there seems to be little value in not recognizing the fact that, sometimes, officers can be relying on incorrect information without any basis for knowing that it’s incorrect. Similarly, the “inevitable discovery” rule, which allows for admission of illegally obtained evidence if it can be shown that investigators would have discovered it anyway during the course of an ordinary investigation makes sense because it recognizes the realities that can often accompany a police investigation. The problem with the three decades of exceptions that the Supreme Court has created, though, is the fact that there are now so many of them that the Court is in danger of giving law enforcement virtually unfettered discretion and leaving citizens without both rights and a remedy when those rights are violated. All of this leads to a general attitude among law enforcement that they can do whatever they feel they need to do as long as they can justify it in the name of “public safety.”
As Justice Sotomayor notes in her powerful dissent, the Courts ruling in this case essentially means that a police officer can knowingly illegally stop someone and, if their name happens to come up with an outstanding warrant for even the most petty traffic offense, a warrant that may well be inaccurately left open when it has in fact been satisfied, then the policy can arrest and search that individual and charge them with whatever crime Prior to Monday, anything the officer discovered would be considered the ‘fruit of a poisonous tree’ and be considered inadmissible at trial unless some exception applied. With this decision, though, the evidence is admissible notwithstanding the illegal stop. In other words, the Court is telling police they can do whatever they want in the event of an illegal stop and there won’t be any price to pay for it. The probability that this will lead to increased police harassment of minorities should be rather obvious.
Here’s the opinion:
I guess it will be up to a liberal majority on the Supreme Court to right this latest wrong, among so many others…hopefully that formation of the court will come sooner rather than later…
Tell that to Clinton appointee Justice Stephen Breyer, who joined the majority in this case.
I’m well aware of that…I meant liberals like Ruth Bader Ginsburg and Sonia Sotomayor…
@An Interested Party:
And if Garland is eventually confirmed, he undoubtedly would have joined that majority as well. He has been an extremely pro-police judge for his entire time on the federal bench.
@An Interested Party:
There are only three of them. On police issues, the majority will certainly not be liberal no matter who wins the election this year.
@Ben in RI:
This is true. Indeed, the current generation of liberal judges don’t seem to be much better than him on police matters generally speaking. But then, judges of both parties at all levels have been becoming more deferential to the police for some time now.
Oh really? So there are no liberal judges, or any judges, on the federal bench who have a more citizen-friendly view of the 4th Amendment?
Heh, didn’t realize there was a difference between “illegal” and “flagrantly unlawful.” Is that really a legal distinction?
Sorta hard to call for citizens’ rights when you have TERROR TERROR TERROR EVIL RADICAL ISLAMISTS being blasted out by at least 50% of the population.
Except if you have a gun in your hand. Then the Second Amendment trumps everything and you’re good to go!
Only for the police. For a policeman to be held accountable, it’s not enough for him to commit a criminal act — it has to be flagrantly criminal, and even then it’s often not enough.
For example, I walk up to a child in a park and shoot him dead, that’s a crime. For a policeman to do the same thing, it’s more of a “whoopsie!”.
OT: Lil’ Rubio has decided to run again for Senator in Florida. Of course, after promising that he wasn’t going to.
God I hate that cheap windsock.
I think Professor Kerr meant to say Sotomayor (even if Kagan joined her dissent). Anyway, thank these two ladies for calling out the majority.
It sure would help if some president would be willing to nominate judges who’d had experience as defenders instead of prosecutors, There is almost no one on the federal bench who has has any real understanding of a defendant’s experiences with police.
Trouble is, once you nominate a defense lawyer, the other side — oh, hell, it’s Republicans — starts screaming “this commie judge loves child molesters and murderers!”
@An Interested Party:
Scalia was one of the more consistent voices on the fourth Amendment, often siding with the liberal wing. In Kyllo, in US v. Jones, in Jardines. His dissent in Maryland v. King was brilliant. He sometimes unfortunately sided with law enforcement. But he was way better than the conservative wing and several members of the liberal wing. Replacing him Garland is going to be a huge step backward on the fourth amendment.
What are the reasons behind that? Is it a generational thing, some media influence, a reluctance to jeopardize courts’ relationships with police, or just overdone sympathy for police in general?
A question for the legal minds here: I have been told all my life that I must identify myself to a law enforcement office upon request. I have never had an explanation of the circumstance that would make such a request improper/illegal on the part of the policeman. Is there a short, sweet explanation or a link that would clear that up?
@JohnMcC: Sure. If you don’t want to get the crap beaten out of you for being “non-compliant” and “resisting arrest” and “assaulting a police officer”, you do what the fvck you are told.
Oooops, wait a minute, you meant legal minds who practice in court, not in the street where law is actually applied. My bad. 😉
Whoever told you you must identify yourself to the police is wrong. There is no “papers, please, citizen” requirement in the US. The police can only lawfully demand ID when they have reasonable articulable suspicion that you are committing, just have committed, or just about to commit, a crime. Absent their credible belief that you are at that moment engaged in a criminal act, they have no authority to demand your ID and you are under no obligation to give it to them.
Also, remember you have the right to remain silent. The correct answer in most cases when the police ask you something is nothing. They are not your friend, and at the point they are asking you for information, it’s usually to jam you up. You are under no obligation to help them, and a refusal to speak is your right.
(Note: the above is extremely simplified, and there are of course exceptions and complications galore, especially when you are driving a car. But it’s a handy guideline).
That pretty much tells you up front everything you need to know about the merits of the ruling.
@Doug Mataconis: Anybody see a connection between what Doug just brought up and many federal judges being former prosecutors? Or is it just my imagination?
@Rafer Janders: I liked it better in Korea, where if I was having a problem, I could walk into a precinct and be confident that someone there would try to help me, even though I spoke almost no Korean and many officers spoke little English (despite, in some cases, many, many years of instruction in it).
I guess I didn’t know that in 1970.
The Interstates were not completed yet. My college roomate and I were standing on the road side of the 2 lane highway just south of Champaign IL with our hippie hair blowing in the wind and our thumbs out trying to get back to Sleepytown U some 200 miles south.
Hitchiking was illegal in the Prairie State but that wasn’t going to stop us.
We had not been there very long when an Illinois State Police car slowed down for a look as he passed us going north and then turned around to stop and check us out.
“Can I see your ID’s?”
I asked if there was anything wrong as we showed him our Driver’s Licenses.
“Just routine. Where are you headed?”
When we told him where we were going he said “Jump in. I’ll give you a ride to the enterance ramp of the new interstate.”
How could we say no?
After he dropped us off and left we looked at each other and laughed out loud!
What Officer Krupke didn’t know was that our luggage that he never searched was full of lids of weed that we had just bought and were taking back home to sell. He had assisted us in the illegal transportation of drugs.
That was not my first ride in a squad car but it was by far the best!
I’m always of two minds on these sort of issues.
On the one hand, I absolutely agree that the constitution does/should prohibit law enforcement from harassing citizens and/or being able to dig into a targeted citizen’s life until something illegal is found.
But on the flip side, do find it disturbing that so many Americans seem to have the misguided belief that the 4th Amendment somehow gives them the right to knowingly break the law … as long as they don’t get caught.
The real reason we need the 4th and 5th Amendment protections is because there are so many laws that it’s very easy for any of us to unintentionally break one (or more) of them at any given time.
The fact that these needed protections in most cases also make it somewhat harder to catch those who intentionally commit crimes is an unfortunate side effect … not the intended purpose of that portion of the Bill of Rights.
Well, the good thing about those worried about a Garland on SCOTUs is that Garland’s nomination is doomed. I don’t see the present Senate voting to confirm him, even in the lame duck session. Hopefully,Clinton will start with a new Democratic majority Senate , and will most likely appoint someone younger and more liberal. I’ll defer to HL92 on this, (he knows the appellate judges) but I think it’s likely that her appointment will be a lot more like Sotomayor or Kagan than like Breyer or Garland.
As for Breyer, I suspect that he along with Ginsburg will retire in the next two years, for the very good political reason that any Democratic Senate majority will not last beyond November 2018.That means Clinton will replace him with a young liberal too.
So I am guardedly hopeful we will see a liberal, more pro-Fourth Amendment friendly Supreme Court majority relatively soon. We’ve gotta vote, though, and get out the vote.
So much for the “strict constructionist” wing of the SCOTUS.
@Doug Mataconis: “Tell that to Clinton appointee Justice Stephen Breyer, who joined the majority in this case.”
Doug, it’s good to see you on the side of the angels!
However, your math is still bad:
25% of Democratic Justices voted for this, vs. 100% of GOP Justices.
@Todd: “But on the flip side, do find it disturbing that so many Americans seem to have the misguided belief that the 4th Amendment somehow gives them the right to knowingly break the law … as long as they don’t get caught.”
Since nobody here has expressed that thought, I think that you are seeing pink elephants.
I believe in Texas you do have to show your ID or driver’s license if an officer requests it.
This is an important issue for me as well as my wife. She has been a prosecutor as well as a defense attorney it was not any less important to her when she worked for either side.
Here is what she wrote about it.