The Supreme Court Further Undercuts the Fourth Amendment

On Monday, June 20, 2016, the U.S. Supreme Court further vitiated the Fourth Amendment’s prohibition against unlawful searches and seizures. In Utah v. Strieff (No. 14-1373), Justice Clarence Thomas wrote the majority opinion, joined by Chief Justice Roberts, and Justices Kennedy, Breyer and Alito. Justices Sotomayor, Ginsburg and Kagan dissented.

In this case, narcotics detective Douglas Fackrell was conducting a surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week led him to suspect that the occupants were dealing drugs. When he observed defendant Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The Supreme Court reversed, holding that the evidence Officer Fackrell seized incident to Strieff’s arrest was not subject to the “exclusionary rule,” which requires that evidence unlawfully seized be excluded from evidence. In his majority opinion, Justice Thomas found that the evidence found on Strieff’s person was admissible based on an application of the “attenuation factors” originally articulated by the Court in Brown v. Illinois, 422 U. S. 590. This attenuation doctrine provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593. The basic argument applied by Justice Thomas in his majority opinion was that although the initial investigatory stop of Strieff was admittedly unlawful, since it was assumed that the officer did not have sufficient “reasonable suspicion” that Strieff was engaged in an illegal activity, the causal connection between the unlawful search and the seizure of evidence from his person was “attenuated” by the fact that Officer Fackrell’s discovered there was a valid, pre-existing arrest warrant for him.

As Justice Sotomayor pointed out in a blistering dissent, the majority decision basically means that any tainted evidence unlawfully seized after an illegal investigatory stop of a person may be used as evidence to convict that person of a crime as long as the officer later learns that there is an outstanding traffic ticket or moving violation outstanding against that person. Thus, this decision almost completely undercuts the exclusionary rule, which is the primary judicial remedy for deterring Fourth Amendment violations, and encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796, 804.

Sotomayor’s remarkably strong dissent criticized the majority opinion as excusing clear-cut violation of the Fourth Amendment right to be free of unlawful searches and seizures, while saying “that your body is subject to invasion” even though your rights have been violated. Her dissent cited to the Department of Justice’s recent report on police misconduct in Ferguson, Missouri, as well as to various books that and books like Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’ “Between the World and Me” and James Baldwin’s 1963 classic “The Fire Next Time.”

Sotomayor noted that, although Strieff is white, the majority opinion could be used by police officer to justify racial profiling: “The white defendant in this case shows that anyone’s dignity can be violated in this manner … 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.”

This decision is the latest in a long line of decisions that have been chipping away at the Fourth Amendment and the Exclusionary Rule’s deterrence against police misconduct and arbitrary stops without any reasonable suspicion. This is but another reason why the selection of the ninth Supreme Court justice to fill the vacant seat on the Supreme Court is so critical to important issues raised by this case and so many others.