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SCOTUS enters the real world

I learned a lot of things about Ferguson in August of 2014, when police officer Darren Wilson shot and killed an unarmed black teenager.  I learned that Ferguson is about 75% black, but whites control the city council.  I learned that the Ferguson police force has the kind of weapons and equipment to take on a Navy Seal team.

Here's what I learned during the oral argument in the Supreme Court last week in Utah v. Strieff:  In Ferguson, about 80% of the residents have a minor traffic warrant outstanding. 

As the case caption gives away, Edward Strieff didn't live in Ferguson.  He lived in Utah.  A detective in a town there had gotten an anonymous tip about a drug house, staked it out for three hours, and decided to stop the next person who came out.  That was Strieff.  The cop asked for his ID, checked it, and found that Strieff had a "small traffic warrant" out for him.  He arrested Strieff, and found drugs on him.  Even the government - Utah and the US solicitor general -- concedes that the detective didn't have reasonable suspicion for the stop.

But according to them, it doesn't matter.  They argue that the exclusionary rule doesn't apply.

Assaults on the exclusionary rule are nothing new.  Miranda v. Arizona and Mapp v. Ohio are two of the most reviled decisions among the law and order crowd, excluding relevant evidence because of the way in which the police gathered it.  And while there's at least the possibility of a false confession - estimates are that as many as 15% of them might be - there's nothing false about five kilos of cocaine sitting in the trunk of a car.

The Court has been whittling down the exclusionary rule for years, first with US v. Leon, the 1984 decision which created a good faith exception for searches conducted with a warrant.  A few years back, in Herring v. US, the Court extended that rule to an arrest based on a warrant that turned out to be invalid.  In Davis v. Arizona, the Court applied the good-faith exception to a search conducted pursuant to a Supreme Court decision which was subsequently overruled.  And in Herring and Michigan v. Hudson, the majority opinions spent no little time on screeds bemoaning the "heavy societal cost" of excluding evidence because "the constable blundered."

Strieff presents the next step in that argument.  Essentially, the state contends that the good faith exception should be applied to all searches, including warrantless ones; only where police engage in flagrant misconduct should the evidence be suppressed.  This isn't a novel idea.  In fact, it's become the life's work of the Ohio Attorney General's office, their enthusiasm for the proposition leading them several years ago to argue that Ohio shouldn't have an exclusionary rule because it was rejected in a 1936 Ohio Supreme Court decision.

There are certainly a number of legal arguments one can advance, pro and con.  To be sure, whether suppressing highly relevant evidence deters police misconduct in obtaining it is open to some debate, especially since the line where police conduct crosses over into a violation of the 4th Amendment is a decidedly blurry one.  Then again, how the vagaries of search and seizure jurisprudence are going to be resolved by adding another variable into the mix - not only whether the police decision on whether probable cause or reasonable suspicion existed, but whether their incorrect decision that it did was "flagrant" - isn't at all clear.

But what was especially interesting about the argument in Strieff is that it wasn't conducted in stratosphere of abstract legal principles.  That happens too often, especially in the Supreme Court.  Whren v. US, the 1996 decision which held that the ulterior motives of a police officer conducting a traffic stop were irrelevant, was completely divorced from the reality of how it would be applied, with officers driving around minority neighborhoods looking for the most minor traffic infraction to justify pulling a car over and finding a way to search it for drugs or guns.

But not here.  A large part of that was the steps Ferguson had taken which resulted in the vast majority of the population having arrest warrants out for them.  It was a revenue measure:  police vigorously enforced even minor traffic violations, and if the defendant did not appear in court, or was late in paying his fine, a warrant was issued for his arrest, leading to the collection of even more fines and costs.  While Ferguson had certainly fine-tuned its methods, the city was not alone in doing so.  Kagan confessed to be "staggered by the number of arrest warrants that are out on people," and Ginsburg also seemed skeptical of the government's position.

Not so Kennedy, Alito, and Roberts.  Breyer and Thomas asked no questions, leaving a 4-4 split a likely outcome.  How Scalia's presence might have affected the outcome is anyone's guess:  he was the author of the opinion in Michigan v. Hudson, denouncing the exclusionary rule in scathing terms, but he'd been better about 4th Amendment issues in more recent decisions.

Two things about his absence.  First, it did little to promote comity on the bench.  At one point, Alito suggested that upholding the government's position was unlikely to result in traffic courts issuing warrants just to provide justification for randomly stopping people.  That prompted a tart rejoinder by Sotomayor:   "I'm very surprised that Justice Alito doesn't know that most of these warrants are automatic. If you don't pay your fine within a certain amount of days, they're issued virtually automatically."

Second, the case shows the limits of Scalia's resort to originalism.  George Washington and James Madison didn't have to worry about being the subject of a bullshit traffic warrant, and neither did anybody else back then.

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