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Analysis: Utah v. Strieff

The cops stop you for no reason.  They run your ID, and find that you've got an outstanding warrant because you didn't pay the fine for a speeding violation.  They arrest you, and find drugs.  Can you say "fruit of the poisonous tree"?  Sure you can:  the discovery of the evidence derives from the illegal stop, so it gets thrown out.

Not after Monday's Supreme Court decision in Utah v. Streiff.  

First, the facts.  Utah Detective Doug Fackrell was conducting surveillance on a suspect drug house, and decided he would stop the next person he saw leaving the house.  That happened to be Edward Strieff.  Fackrell asked for Strieff's ID, and found that Strieff had a warrant for a traffic violation.  Fackrell arrested Strieff, searched him, and found meth and drug paraphernalia.

Notably absent from this narrative is anything remotely constituting a legal basis for the initial stop.  The Court nonetheless decides that the evidence comes in, because the attenuation doctrine makes application of the exclusionary rule unwarranted in this case.

Say what?

Back in 1976, in Brown v. Illinois, the Supreme Court considered the question of whether a statement given to the police after an illegal arrest is saved by the fact that the cops gave the defendant his Miranda rights; in short, whether the reading of the rights "attenuated" the initial illegality of the arrest.  After considering the totality of the circumstances, the Court decided in that case that it didn't.

Strieff applies the three-part test from Brown, although one searches the Brown opinion in vain for any mention of a three-part test.  Strieff nonetheless comes up with one, with the first being the temporal proximity of the illegal stop to the search.  That comes down on Strieff's side; the search occurred only minutes after the stop.

It's all downhill from there, though.  The second factor is "the presence of intervening circumstances," and the Court finds that the outstanding warrant was just such a factor.  The third is "the purpose and flagrancy of the official misconduct," and here the Court finds that "While Officer Fackrell's decision to initiate the stop was mistaken, his conduct thereafter was lawful."

Where to begin?  Let's look at that last statement.  Fackrell's decision wasn't "mistaken"; it's not like he saw a lump in Strieff's pocket which he thought was cocaine, but which was actually a candy bar.  He fully intended to stop Strieff even though he knew there was no legal basis for doing so.  The state didn't even contest the illegality of the stop.  That's not a "mistake," that's an intentional violation of the Fourth Amendment.

For the question of intervening circumstances, the Court relies on Segura v. United States, where the officers developed probable cause to believe that apartment occupants were dealing cocaine, and sought a warrant.  Before one was issued, they entered the apartment to arrest someone and found evidence of drug activity during a "protective sweep."  The warrant was issued soon after, and the Court upheld the seizure of the evidence, because the information supporting the warrant was "wholly unconnected to the entry and was known to the agents well before the initial entry."

The decision in Segura is understandable:  when the police do what they're supposed to do - get a warrant - it doesn't seem reasonable to punish them by tossing out the evidence.  Actually, Segura seems to be based more on the inevitable doctrine discovery:  the police would've found the evidence anyway if they'd waited for the warrant to arrive.

The 4th Circuit's decision in United States v. Gaines is a better example of intervening circumstances.  The police stopped a vehicle in which Gaines was a passenger.  When one officer spotted a gun on Gaines, Gaines assaulted the officer.  The court held that while it would defer to the district court's determination that the initial stop was illegal, the assault, and the resulting arrest for it, was an intervening circumstance.  That's not the situation in Strieff:  while it may be that Fackrell didn't know whether Strieff had an outstanding warrant, he certainly intended to check for it; that's why he asked for Strieff's ID.

In any event, the holding of Strieff is clear:  even if a stop is illegal, if the suspect has an outstanding warrant, any evidence subsequently discovered is admissible. 

The 5-3 opinion cites the "heavy societal costs" of the exclusionary rule, as the Court did in Hudson v. Michigan and Herring v. United States.  That's a problematic analysis, because the only "societal costs" the Court considers is the suppression of otherwise-admissible evidence.  There's a serious problem of sample selection bias there:  the courts know about the one illegal stop which results in tossing out two kilos of cocaine, but it never knows about the twenty illegal stops in which nothing was found, and the driver was allowed to go free after being detained and publicly humiliated during a forty-five minute roadside stop.

The upshot of Strieff is that cops now know if they stop someone illegally and find an outstanding warrant for some trivial traffic violation, it's all good.  And there's a lot of people with outstanding traffic warrants:  during oral argument, Kagan pointed out that in the city of Ferguson, the majority-black Missouri city which was roiled for weeks after a black man was shot and killed by a police officer, 75% of the residents had an outstanding warrant.

It could've been worse, I suppose; Scalia, an ardent foe of the exclusionary rule, died nine days after the argument in Strieff, and the opinion likely would've been worse if he'd been part of it.  As it is, Breyer provided the fifth vote for the majority.  The next person who classifies him as part of the Court's "liberal bloc," at least as far as criminal cases is concerned, should be beaten with sticks. 


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