In June 2016, the Supreme Court of the United States issued twenty-nine decisions on a variety of constitutional matters ranging from Native American court jurisdiction to equal protection, to double jeopardy, to unreasonable searches; the latter being the purpose of this article. It is worth mentioning that Utah v. Strieff, 136 S. Ct. 2056 (2016) addresses the exclusionary rule for the first time in approximately five years. For people of color, including Justice Sotomayor, Strieff signals a dramatic narrowing of the exclusionary rule.
The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ” See U.S. Const. amend. IV. The exclusionary rule acts as a deterrent to unconstitutional searches by barring the admissibility of illegally procured incriminating evidence. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (stating that allowing the government to admit evidence obtained in a constitutionally forbidden way to the court “reduces the Fourth Amendment to a form of mere words”); see also Herring v. United States, 555 U.S. 135, 137 (2009) (stating that the exclusion of evidence is not an “automatic consequence” but rather turns on the “culpability of the police and the potential . . . to deter wrongful police conduct”).
In Strieff, the Court held that without flagrant police misconduct, the discovery of a valid pre-existing, warrant for an individual’s arrest makes evidence seized pursuant to that arrest admissible, even when the initial stop was unconstitutional. See Strieff, 136 S. Ct. at 2058. The majority finds that an officer who conducts an illegal Terry stop is “at most negligent.” See id. at 2063; but see Terry v. Ohio, 392 U.S. 1, 21 (1968) (requiring an officer to have reasonable suspicion that an individual committed a crime before the officer is allowed to detain and question said individual). The majority’s minimization of the officer’s conduct ignores the real life indignities that citizens who are frequently subjected to Terry stops face.
The Court justified its decision based on the attenuation doctrine, which states that evidence is admissible when the connection between the unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by intervening circumstances. See Hudson v. Michigan, 547 U.S. 586, 593 (2016). The majority cites the pre-existing warrant as an intervening circumstance, which not only allowed but actually required the search of Strieff’s person. See Strieff, 136 S. Ct. at 2062-63.
Justice Sotomayor raises a sharp dissent to the majority’s curtailment of the exclusionary rule. She points to the officer’s illegal Terry stop and the fact that the pre-existing warrant was issued for an unpaid parking ticket as problematic, to say the least. See Strieff, 136 S. Ct. at 2065 (Sotomayor, J., dissenting). She comments that excluding evidence resulting from negligible mistakes can have a deterring effect and prevent further unconstitutional searches by officers by giving them “an incentive to err on the side of constitutional behavior.” Id. at 2068 (Sotomayor, J., dissenting) (quoting U.S. v. Johnson, 457 U.S. 537, 561 (1982)). According to Justice Sotomayor, this decision will allow officers to run background checks on all citizens without cause, which will encourage violations of the Fourth Amendment. See id. at 2068, 2071 (stating that this invasion of Fourth Amendment rights “implies that [Americans] are not citizen[s] of a democracy but the subject of a carceral state”). Further, she disputes the majority’s position that this incident is not indicative of a recurrent or systemic problem in police conduct. See id. Rather, she boldly notes that although the defendant in this case is White, Black and Brown Americans frequently face situations similar to that of the underlying facts, which is indicative of a recurrent and systemic defect that the “good faith” of officers will not cure. See id.
Professor Orin Kerr of George Washington University School of Law confidently states that Strieff does not overturn the exclusionary rule. See Orin Kerr, Opinion analysis: The exclusionary rule is weakened but it still lives, SCOTUSblog, June 20, 2016 http://www.scotusblog.com/2016/06/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives/. Rather, he contends that the opinion purports to comply with existing exceptions to the exclusionary rule. That argument is debatable. Kerr scrutinizes the three-factor attenuation test because the majority fails to acknowledge its departure from Brown, which called for a totality of the circumstances analysis. See Kerr; See also Brown v. Illinois, 422 U.S. 590, 603-04 (1970) (stating that the human mind is too complex and the possibilities of misconduct too diverse “to permit protection of the Fourth Amendment to turn on such a talismanic test”).
Additionally, the government has the burden to establish attenuation including the prong of purpose and flagrancy of the violation. See Brown, 422 U.S. at 604. However, in Strieff, the government conceded that there was no reasonable suspicion and the officer admitted that he demanded to speak to Strieff “to find out what was going on [in] the house” yet the court still found that he acted with good faith. See Strieff, 136 S. Ct. at 2063 (majority opinion). This position lowers the standard of good faith for officers thereby making it much harder for defense counsel to persuade a court to exclude illegally obtained evidence. See Kerr.
While this decision is likely to have an aggravating impact on the already frequent and recurring interactions between law enforcement and people of color; the majority disregards this likely result. Perhaps what is most important is that the exclusionary rule lives on and flagrant police misconduct (whatever that is) will be deterred with the exclusion of illegally obtained evidence.
Published November 6, 2016