RIP 4th Amendment – Part 1 – Utah v. Strieff Decision
In an era where the 2nd Amendment is untouchable, the 4th Amendment is nearing extinction due to two rulings this week by the U.S. Supreme Court. Before getting into the first decision – Utah v. Strieff – let’s remind ourselves of what the 4th Amendment is supposed to protect.
The Fourth Amendment, often considered one of the most important protections afforded individuals, protects people from unreasonable searches and seizures. A violation of our Fourth Amendment rights usually leads to the suppression of evidence that was seized as a result. This result is critical to ensure that cops are forced to follow the law and perform their duties in accordance with it. But, with this new case, the opposite may be true – cops may be incentivized to disregard the Fourth Amendment. Sadly, this isn’t hyperbole either.
The Facts –
The Supreme Court was asked to consider whether a search incident to arrest was constitutional when the officer had no legal basis to initiate contact with the defendant in the first place. In this case, the defendant had just left a house suspected of having “narcotics activity.” The officer, who was investigating the tip that this house was involved in drug activity, had conducted surveillance of this residence and believed the tip may be credible. When the officer noticed the defendant leave the house – but had not seen when the defendant entered the house – he approached the defendant, detained him, and immediately demanded his identification. After relaying his identification information to dispatch, the officer subsequently learned that the defendant had an arrest warrant for a traffic violation. This gave cause for an arrest and during the legal search incident to arrest, he discovered narcotics, leading to a conviction for the possession of said narcotics. Important to this fact scenario – the State agrees that the initial stop of the Defendant was not constitutional – i.e. the officer did not have reasonable and articulable suspicion to stop and detain the defendant.
The Decision –
Typically, a Fourth Amendment violation leads to suppressing evidence seized. But, there are three exceptions to this suppression rule. Relevant to this case, the attenuation doctrine:
Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.
The intervening circumstance would have to be the existence of an arrest warrant at the time of the illegal stop, which was unknown to the officer prior to the stop.
There are three factors the Court utilizes in determining whether the attenuation doctrine saves the evidence from being suppressed:
- The “temporal proximity” between the unconstitutional conduct and the discovery of evidence
- The presence of intervening circumstances
- The purpose and flagrancy of the official misconduct – this is of “particular significance” to the analysis.
Temporal Proximity – The closer in time the illegal conduct is to the search favors suppression. Here, minutes lapsed and the Court agrees that this factor favors suppression.
Intervening Circumstances – According to the Court, the fact that the warrant was valid, predated the officer’s investigation into the defendant, and it was entirely unconnected to the stop leads to the conclusion that this intervening circumstance – the warrant – is sufficiently attenuated from the illegal stop to dissipate the harm and justify keeping in as evidence.
Purpose and Flagrancy – Suppression of evidence is meant to deter police misconduct – i.e. when it is purposeful or flagrant. Somehow, the Court held that the officer’s conduct here was akin to negligence, rather than intentional. Because he could have asked to speak with the defendant, rather than immediately detain him, this mis-judgment didn’t rise to the level of flagrant misconduct. Apparently, a known 4th Amendment violation isn’t flagrant enough for the Court.
Due to the final two factors weighing in favor of the State, the illegal stop did not justify the suppression of the evidence and the Supreme Court upheld the conviction, despite a clear 4th Amendment violation at the most simplest of levels. Utterly dumbfounding.
The Dissent –
Obviously, the dissent was less than pleased with this awful abrogation of a key constitutional principle. It was scathing. What follows are key passages of note. It starts with this scathing paragraph:
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.
And it begins with this analysis, something that should be obvious, but somehow ignored by the majority:
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. [Citation omitted.] When “lawless police conduct” uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence….
This “exclusionary rule” removes an incentive for officers to search us without proper justification. [Citation omitted.] It also keeps courts from being “made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” [Citation omitted.] When courts admit only lawfully obtained evidence, they encourage “those who formulate law enforcement polices, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.” [Citation omitted.] But when courts admit illegally obtained evidence as well, they reward “manifest neglect if not an open defiance of the prohibitions of the Constitution.”
And, as far as the flagrancy issue, this covers it (citations omitted):
Most striking about the Court’s opinion is its insistence that the event here was “isolated,” with “no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Respectfully, nothing about this case is isolated.
Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant. When a person on probation drinks alcohol or breaks curfew, a court will issue a warrant. The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. Even these sources may not track the “staggering” numbers of warrants, “`drawers and drawers'” full, that many cities issue for traffic violations and ordinance infractions. The county in this case has had a “backlog” of such warrants. The Department of Justice recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them.
Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid tickets.” In the St. Louis metropolitan area, officers “routinely” stop people—on the street, at bus stops, or even in court—for no reason other than “an officer’s desire to check whether the subject had a municipal arrest warrant pending.” In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them. The Justice Department analyzed these warrant-checked stops and reported that “approximately 93% of the stops would have been considered unsupported by articulated reasonable suspicion.”
I do not doubt that most officers act in “good faith” and do not set out to break the law. That does not mean these stops are “isolated instance[s] of negligence,” however. Many are the product of institutionalized training procedures. The New York City Police Department long trained officers to, in the words of a District Judge, “stop and question first, develop reasonable suspicion later.” The Utah Supreme Court described as “`routine procedure’ or `common practice'” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion. In the related context of traffic stops, one widely followed police manual instructs officers looking for drugs to “run at least a warrants check on all drivers you stop. Statistically, narcotics offenders are . . . more likely to fail to appear on simple citations, such as traffic or trespass violations, leading to the issuance of bench warrants. Discovery of an outstanding warrant gives you cause for an immediate custodial arrest and search of the suspect.”
The majority does not suggest what makes this case “isolated” from these and countless other examples. Nor does it offer guidance for how a defendant can prove that his arrest was the result of “widespread” misconduct. Surely it should not take a federal investigation of Salt Lake County before the Court would protect someone in Strieff’s position.
The dissent then warns what this ruling will lead to:
The majority’s misapplication of the three-part inquiry creates unfortunate incentives for the police— indeed, practically invites them to do what [the officer] did here. Consider an officer who wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove.
Now, more than ever, you need experienced and skilled criminal defense lawyers to fight for you. We fight to preserve what is left of the 4th Amendment protections.