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Utah v. Strieff Doesn’t Give Cops License to Kill the Fourth

| July 25, 2016

This commentary originally appeared in the Washington Examiner on July 25th, 2016.

“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.”

Nah.

This quote comes from Justice Sonia Sotomayor’s dissent in Utah v. Strieff. The Supreme Court ruled that evidence found subsequent to a valid arrest warrant is admissible, even if the initial detention was in violation of the Fourth Amendment.

When you first read that, you may (and many have) be inclined to yell things such as “that’s an egregious violation of the exclusionary rule!” “This is the end of the Fourth Amendment as we know it!” “Ignited jet fuel can’t melt steel!” Everyone take a deep breath and relax. Reasonable minds may differ on the outcome of this specific case, but this certainly doesn’t set the Fourth Amendment aflame as some have suggested.

In the case, police received an anonymous tip that there was “narcotics activity” going on at a particular house. For a week, an officer conducted sporadic surveillance of the place and noticed that the place received frequent visitors who would stay for only a few minutes at a time.

One of the visitors left the house, and walked to a convenience store, where he was met by the officer, who asked him what he was doing at the house and for identification. The police dispatcher who ran the ID notified the officer that the individual had an outstanding warrant for a traffic violation. The officer arrested him and found a bag of methamphetamine and drug paraphernalia.

Anyone who has taken a college-level criminal procedure class knows this is not enough evidence to stop a person and ask for their identification, also called “reasonable suspicion.” The state didn’t even argue this fact. Because the evidence was obtained from a “tainted” source (the initial detention), the subsequent evidence would normally be suppressed.

However, the court ruled that the evidence in this particular situation was admissible pursuant to the “attenuation doctrine,” a long-held exception to the exclusionary rule. Essentially, courts may allow tainted evidence in if there is some intervening act between the unconstitutional stop and the discovery of the evidence, while taking into consideration the good faith of the officer and the time between the stop and the search.

Here, the court determined that the discovery of the arrest warrant, combined with the fact that the cop acted in good faith and wasn’t on a “fishing expedition,” allowed for the triggering of the attenuation doctrine.

People may debate whether the existence of an arrest warrant for a non-jailable offense, discovered only because of an illegal stop, can constitute an intervening circumstance pursuant to the attenuation doctrine, but that story doesn’t get play.

This case would have gotten zero media attention without the “The Supreme Court just allowed cops to stop you without cause for anything now,” but the truth is just not as sexy.

If there was no warrant, the evidence would have been excluded. Without the anonymous tip plus the evidence gathered by the officer over several days, the evidence gets tossed. Should the meth evidence have been suppressed? The court examined the three factors laid out in the 1975 Brown v. Illinois case, which dictates whether the illegal stop was attenuated enough from the evidence discovery. My analysis leaves me to believe the court got this wrong.

Even though the officer did not act in bad faith, the evidence was found moments after the illegal stop. Further, the court argued that the warrant was “entirely unconnected with the stop.” This is false as they would have never discovered the warrant if not for the illegal stop! Slight edge in favor of the defendant.

However, the civil liberty infringement ramifications of this case are minimal, especially considering the doom and gloom prophecies that came in the dissents and from other outlets of the media. Unfortunately, clickbait strategies are increasingly trickling into Supreme Court decisions. It’s going to be sooner rather than later that we see a decision syllabus begin with “You’ll never guess what this justice just opined.”

The reality is officers still cannot stop you for no reason and hope to strike gold. They still need to do police work and gather evidence.

Moral of the story: Pay your traffic tickets and you should be fine.

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GREG GLOD  is a Policy Analyst for Right on Crime as well as the Center for Effective Justice at the Texas Public Policy Foundation. Based in Austin, Texas, Glod is an attorney who began his legal career as a law clerk for the Honorable Judge Laura S. Kiessling on the Circuit Court for Anne Arundel County, Maryland. He subsequently practiced at a litigation firm in Annapolis, Maryland before joining Right on Crime and the Texas Public Policy Foundation. In 2010, he graduated from The Pennsylvania State University with B.A. degrees in Crime, Law, and Justice and Political Science. In 2013, Glod received his J.D. from the University of Maryland School of Law.

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