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Supreme Court divided over warrants discovered in illegal stops

The arrest of Edward J. Strieff Jr. outside a Utah convenience store led to two diametrically opposed responses on the U.S. Supreme Court this past spring.

To the majority, the arrest was essentially no big deal based on a rare police misstep. To the dissenters, the decision could lead to a widespread increase of police stopping individuals on the street, permitting them to arrest anyone with an outstanding warrant and subjecting them to a search.

In late 2006, police in the community of South Salt Lake City, Utah, received an anonymous tip reporting “narcotics activity” at a house. Police Detective Douglas Fackrell conducted intermittent surveillance of the home over the course of a week, and he observed a steady stream of visitors who arrived and left in short order, which raised his suspicions that drugs were being dealt from the house.

At some point, according to court papers, the officer decided to stop and question the next person to leave the house. When Strieff left the home, Fackrell followed along before detaining Strieff in the parking lot of a 7-Eleven, identifying himself, and asking the man what he was doing at the house.

Fackrell could not remember Strieff’s response when he testified later, but the officer also asked for the man’s identification, which he relayed to a police dispatcher for a warrant check.

When the dispatcher reported that Strieff had an outstanding traffic warrant, Fackrell arrested Strieff on the warrant and conducted a search incident to arrest. He discovered a baggie of methamphetamine and drug paraphernalia.

When Strieff was charged with drug offenses based on that discovery, he moved to suppress the evidence as the fruit of an unconstitutional search. Utah prosecutors conceded that Fackrell had lacked reasonable suspicion for his initial stop of Strieff.

But the state argued that the evidence should be admitted because it was discovered during a search incident to the subsequent lawful arrest—based on the existing arrest warrant—and thus it was sufficiently attenuated from the unlawful stop.

Two Utah courts agreed, though the Utah Supreme Court disagreed, concluding that the discovery of an arrest warrant during a routine warrant check is not an “intervening circumstance” under existing precedents.

On June 20, the U.S. Supreme Court reversed the state high court on a 5-3 vote in Utah v. Strieff.

No flagrant misconduct

In a short, workmanlike opinion for the majority, Justice Clarence Thomas said the evidence discovered on Strieff was admissible because the unlawful stop was sufficiently attenuated by the arrest warrant.

“Although the illegal stop was close in time to Strieff’s arrest, that consideration is outweighed by two factors supporting the state,” Thomas wrote. “The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff.”

“And,” Thomas added, “it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

The opinion was joined by Chief Justice John G. Roberts Jr., Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr.

Thomas applied a 1975 Supreme Court decision, Brown v. Illinois, which outlined the “attenuation doctrine” governing when evidence indirectly resulting from Fourth Amendment violations might not be suppressed if it is sufficiently remotely connected to the violation.

The three factors of the test are time, or how soon after the unconstitutional search the evidence was found; second, the presence of intervening circumstances; and third, how flagrant the Fourth Amendment violation was.

The first factor in Strieff’s case favored suppression, Thomas wrote, because of the short time between the illegal stop and the discovery of drug evidence. The other two factors, however, strongly favored the state. The warrant for Strieff was entirely unconnected to the illegal stop, Thomas reasoned, and was an intervening circumstance. The police officer made good-faith mistakes, Thomas wrote.

“There is no indication that this unlawful stop was part of any systemic or recurrent police mis-conduct,” Thomas wrote. “To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.”

To Utah Solicitor General Tyler R. Green, who had argued the state’s case before the justices, Thomas’ opinion was a straightforward endorsement of a view that had been adopted by most lower courts that had considered the issue.

“It’s really not a blockbuster,” Green says of the decision. “It’s a short opinion, and the analysis is five pages. The Supreme Court can’t break a lot of new ground in five pages.”

Warrants, warrants everywhere

The dissenters had a quite different take on the decision, and many legal commentators have agreed that the ruling in fact does break new ground.

“Do not be soothed by the opinion’s technical language,” Justice Sonia Sotomayor wrote in a section of her dissent that was joined by Justice Ruth Bader Ginsburg. “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.”

Both Sotomayor and Justice Elena Kagan, in a separate dissent, emphasized an issue that was raised in briefs and at oral arguments by the lawyers for Strieff: the widespread existence of arrest warrants for large swaths of the population.

Kagan noted that the South Salt Lake City police department’s “standard detention procedures—stop, ask for identification, run a check—are partly designed to find outstanding warrants. And find them they will, given the staggering number of such warrants on the books.”

Both she and Sotomayor took note of a U.S. Department of Justice report looking into the 2014 police shooting death of Michael Brown in Ferguson, Missouri, which prompted days of unrest. The federal report found that with a population of 21,000, some 15,000 residents of Ferguson had outstanding warrants.

Outstanding warrants “are the run-of-the-mill results of police stops—what officers look for when they run a routine check of a person’s identification and what they know will turn up with fair regularity,” Kagan said. “In short, they are nothing like what intervening circumstances are supposed to be.”

Sotomayor, in a portion of her dissent not joined by Ginsburg, said that she was “writing only for myself, and drawing on my professional experiences,” to point out that such stops can be “degrading … when the officer is looking for more.”

“The white defendant in this case shows that anyone’s dignity can be violated in this manner,” Sotomayor wrote. “But it is no secret that people of color are disproportionate victims of this type of scrutiny. … For generations, 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.”

Sotomayor provided what one observer has called a “summer reading” list on minority sensitivity for her colleagues in the majority. She cited these works: W.E.B. Du Bois’ The Souls of Black Folks (1903); James Baldwin’s The Fire Next Time (1963); and Ta-Nehisi Coates’ Between the World and Me (2015).

‘Treasure hunt’

Sherry F. Colb, a professor at Cornell Law School, calls the majority decision “dangerous.”

“Once you tell the police that something that happens in the course of a stop can retroactively support the stop, that invites the police to stop people for no reason,” she says. “It becomes a treasure hunt. Just stop people and call in to dispatch, and who knows, you may find something.”

Green, the Utah solicitor general, says that if there were evidence of the “parade of horribles” suggested by the dissenters and others, it would have turned up in the jurisdictions where the holding in Strieff has been the law for some time.

“Police officers, by and large, try to do what’s right,” he says. “This notion that this decision will be carte blanche for the police to ignore the requirements of the Fourth Amendment, I think we would fundamentally disagree with that premise.”

This article originally appeared in the September 2016 issue of the ABA Journal with this headline: “Warranted Searches: Court divided over whether outstanding warrants discovered during illegal stops justify searches.”