On Monday the United States Supreme Court decided People of Utah v. Strieff. This decision is an utter abomination for civil rights and should reliably the front page news on most newspapers given the discord between the nation and its police over the last two years. I feel that it's my duty as an officer of the Court to speak up when I believe our courts have gotten it wrong. This is one of those instances.
What's it All About?
Strieff is a fourth amendment case that talks about when evidence can or cannot be excluded when it was obtained through an unlawful search and seizure. The Fourth Amendment to the Constitution protects all citizens against "unreasonable search and seizure." Evidence will be suppressed if the link between the bad search and obtaining the evidence was strong, but if there is only a weak link, there might be a way for the state to have the Court hear that evidence.
Strieff concerns a case in which an admittedly unconstitutional detention is made. The officer in Strieff seized Mr. Strieff after observing his behavior around a drug house and stops him to demand his identity. When Mr. Strieff complies, the officer runs a warrant search on him. The warrant search discovers a traffic violation. The officer arrests Strieff on the traffic violation. Strieff is then searched, where the officer discovers methamphetamines and paraphernalia on him. Strieff is then charged with possession.
Here's the question the court asks in plain English:
Is a warrant check a pretext for finding evidence, or is it necessary for officer safety?
The "Attenuation Doctrine"
There is a rule that a search will be suppressed and the evidence not permitted to be used against the accused if the search is "the fruit of a poisonous tree." I've always liked that metaphor, because it's pretty easy to understand. If the search is constitutionally poisonous to civil rights, odds are what you get from that search is too.
We have something in Criminal Procedure called the Exclusionary Rule. The Supreme Court does a good job about talking about the history of police violations, saying that excluding bad evidence became the primary remedy to bad police work in the 20th century, replacing lawsuits and other enforcement actions.
It opined that your test for finding out if you want to exclude evidence against the accused is whether the deterrence benefit of suppressing this type of policing outweighs the social problems caused by weaker police. Again, you're deterring the police from misbehaving and weighing that against stronger criminals. The idea is that you gradually Pavlovian train the police force to err on the side of Constitutionality.
There are three exceptions to the Exclusionary Rule: First, if the Officer later found that evidence through a legitimate source. Second, if the Officer would absolutely have found this evidence anyway. Third, whether the link between the bad search and the evidence is really attenuated, or remote.
To figure out how remote the link is, you look at three factors. First, how much time passed between the bad search and the evidence being found? In this case, the answer was immediate discovery, so this favored a strong link. Second, you look at intervening circumstances. This asks if the searched person confessed or took some other type of action that was the true cause of finding the evidence. We'll come back to this one. Third, you look to see if the conduct was purposely unconstitutional and if the officer knew at the time he was violating the Constitution.
Why the SCOTUS Decided the Warrant was Intervening
The majority opinion (the one that becomes law) says that there are some conflicting duties that the officer must confront. First, the officer is charged to faithfully arrest anyone he encounters with a warrant against his person. While I believe this is just plainly untrue and that police discretion is an important check on a civilian police versus a military one, the Court found that the Officer in this case was duty bound to arrest Strieff once he knew of the warrant. When arrested, the officer must search the accused to make sure there are no threats to the officer's safety. So, that search is incident to the legal traffic warrant and not the unconstitutional stop. Therefore the search doesn't concern the stop, but concerns the arrest on traffic charges.
This is an awful policy. As Justice Sotomayor states, the stop clearly violates the constitutional standards that every single police officer is trained on. This result clearly rewards defying the Constitution, because there was no other way to learn of the warrant other than stopping the man and demanding his name. There is also a legitimate concern that now police can re-calculate their behavior to use traffic warrants and failure to appear warrants to justify searches of a largely law-abiding populace.
So, we're left in a country where the police can stop a man for his identity and then search his record instantly to discover any reason to then search his person. And you, the citizen, have no recourse against the police in this incident.