“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 by searching you after arresting you on the warrant. ” –Sotomayor, J., dissenting
The State of Utah conceded that the stop at issue here was illegal. A police officer had been watching a suspected drug house. When Strieff walked out of the house, the officer stopped him, took his ID, relayed it to a dispatcher, who ran it through the police database and found an outstanding arrest warrant for a traffic violation. The officer arrested Strieff, searched him and found methamphetamine and drug paraphernalia.
The issue was whether the discovery of a valid, pre-existing, untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest. In a 5-3 decision, SCOTUS answered “yes,” applying the 3-factor attenuation test in Brown v. Illinois, 422 U.S. 590 (1975).
First, a short time interval between an unlawful stop and the search favors suppression of the evidence. So far, “short” means less than 2 hours. Here, mere minutes elapsed, suggesting that suppression was in order. Slip op. at 5. But the second factor–the presence of intervening circumstances–“strongly favored the State.” Id. at 6. According to the majority, the existence of a valid arrest warrant that predated the illegal search favored admission of the illegally-obtained evidence. Id. at 7. And so did the third factor: the purpose and flagrancy of the official misconduct. The majority held that the officer’s conduct “was at most negligent.”
In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a shortterm visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” Nothing prevented him from approaching Strieff simply to ask. Id. at 8.
Justices Sotomayor and Kagan wrote sharp dissents. Ginsburg joined Kagan’s opinion and all of Sotomayor’s except the part that Slate.com calls an “Atomic Bomb of a Dissent Slamming Racial Profiling and Mass Imprisonment.” Click here.
Both dissents highlight the staggering number of outstanding arrest warrants in the United States. Utah (where this case arose) has over 180,000 outstanding misdemeanor warrants. California alone has over 2.5 million outstanding arrest warrants corresponding to about 9% of its population. And in Ferguson, Missouri over 76% of residents have outstanding warrants against them.
Thus, Kagan notes, finding an outstanding is not an “intervening circumstance” a la Brown factor #2. It’s what the police expect to find when they stop a person and run a routine check of his or identification, and it happens frequently. Furthermore, the officer here admitted that he made the stop for an investigatory purpose, and the State has never argued that it was legal. Kagan’s dissent at 3. This decision then creates an incentive to stop people without reasonable suspicion because if there happens to be an outstanding arrest warrant for him, any evidence found will be admissible. That’s “exactly the the temptation the exclusionary rule is supposed to remove.” Id. at 6.
Orin Kerr expresses relief that the majority did not overturn the “fruit of the poisonous tree” doctrine from Wong Sun v. United States, 371 U.S. 471 (1963). Like the dissenters, he thinks the decision teaches officers: “when in doubt, make the stop.” The burden of proving attenuation is supposed to be on the State, but in practice, Kerr says, defense lawyers need to make a record regarding the third factor: “purpose and flagrancy of the official misconduct.” That’s how to get around this decision. As noted in our post on the cert petition, Wisconsin had not ruled on this issue, so we are starting with Strieff.