The Supreme Court’s Attenuation Deficit Disorder

The outcome in Justice Clarence Thomas’ opinion for the 5-3 majority in Utah v. Strieff didn’t come as a surprise, but only because Andrew Fleischman called it.

The idea back then was that, when the government acted unlawfully, it should not benefit as a result. It’s the same basic reason that the government won’t let you use unlawfully obtained money to pay for your legal defense.

Then, somewhere along the lines, things got muddied. Suddenly, the exclusionary rule wasn’t about preventing the government from benefiting from illegal conduct. Instead, it was solely about deterrence.

This refers to Wong Sun and the “fruit of the poisonous tree” doctrine. Violate the Constitution and you don’t get to enjoy the benefits of illegal conduct. Not too elusive of a concept, but one that has fallen into disfavor because it lets the criminal go free. Who wants that?

That Strieff’s initial seizure violated his constitutional rights is a given. Everyone concedes that narcotics dick Douglas Fackrell pinched Edward Strieff because he felt like it. But when he ran Strieff and found he had an open warrant for a traffic violation, the clouds parted, the sun shone brightly and all was well in court-world. Because of an excuse called “attenuation.”

Giving the majority the most generous read possible, Orin Kerr explains:

The Court presents the Brown three-factor test as if it were obviously the settled doctrine a court should apply. It’s worth noting that this is hardly so.

First of all, Brown itself does not say that the attenuation doctrine is a three-factor test. Brownsuggests more of a “totality of the circumstances” analysis, with no exclusive list of considerations. AsBrown stresses, there is no “talismanic test” for attenuation. Second, post-Brown attenuation cases have not focused on Brown or applied a three-factor test.

Given that, it’s a little odd that the Court proceeds through the three factors from Brown in an almost mathematical way.

Orin refers to Brown v. Illinois, upon which Thomas relied because he couldn’t find any better case to use. What the Court didn’t do is reverse Wong Sun. What the Court also didn’t do is adhere to the Brown holding. What the Court did do is twist an old decision to fit a new outcome, which should now be dubbed The Flagrantly Unlawful Cop Test.*

The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.

How does one distinguish “flagrantly unlawful police misconduct” from the merely unlawful police misconduct that makes Supreme Court justices shrug? They know it when they see it, yo.

But the excuse of the warrant breaking the causal chain, by twisting Brown into a three-prong test, is a pretty cool judge trick.

The majority largely fills this in, concluding that the Fourth Amendment violation was “at most negligent” and was based on “good-faith mistakes.” The majority adds:

[T]here is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection   with a bona fide investigation of a suspected drug house.

But what’s the evidence either way? Looking at the record in Strieff, the government could only point to a single statement relating to the officer’s purpose. In the direct examination at the suppression hearing, the prosecutor asked the officer, “Why did you stop [Strieff]?” I gather this was a question about what cause the officer had to stop Strieff; the prosecutor was trying to establish reasonable suspicion to justify the stop. The officer responded with a general statement of his motive:

[Strieff] was coming out of the house that I had been watching and I decided that I’d like to ask somebody if I could find out what was going on the house.

The majority suggests that this establishes the officer’s good faith. I don’t see how.

And that’s Orin, giving the majority every benefit of the doubt. If you, too, find yourself scratching your noggin, squinting your eyes, trying desperately to find some logic in the rhetoric, stop before you hurt yourself. It’s not there. There’s no “there” there. The best you’re going to come up with is, well, the guy with drugs had a warrant, so there ya go.

Justice Sonia Sotomayor went to town in a dissent, which is notable for many reasons, not the least of which is that it failed to gain the support of either Justice Elena Kagan or the Notorious RBG, in a Kagan dissent. But Sonia from the block dropped the bomb:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

While many will be swept up in the language and references (there’s a certain prosaic latitude for dissents that can’t be enjoyed in the majority opinion), there are some actual doctrinal points to be made here. If post hoc discovery of a warrant, a not uncommon thing for a great many Americans, particularly those living in unpleasant neighborhoods, makes unconstitutional seizures go poof, then this decision opens a hole big enough to drive an MRAP through.

This opinion creates an incentive for cops to stop anyone they want, anytime they want, run the name in the hope of picking up an errant warrant (whether real or just a basic public servant screw-up, because it’s too much to expect government to get anything right) and get a free pass on the baseless seizure. No warrant, no problem. They let the guy walk if they can’t come up with any other excuse. Warrant? Boom, free ride on the unflagrantly unlawful misconduct, and another bad dude off the streets.

Orin, for reasons that elude me, suggests a work-around to the Flagrantly Unlawful Police Misconduct Test.

In theory, the burden of proving attenuation is on the government. But in practice, I think a defense attorney needs to build up a record to show purpose and flagrancy. If the courts presume that officers are acting in good faith, defense lawyers need to put in evidence at suppression hearings indicating that this may be wrong.

In theory, this anti-doctrinal theory may seem adorable, but defense lawyers need to put in evidence? What evidence? There’s no evidence, and if there was, defense lawyers certainly wouldn’t have it. What are the chances that a defense lawyer, giving the cop the evil eye on the stand, is going to get him to cry out that his real purpose in committing unlawful misconduct was that he wanted to rape the defendant’s mother?

It’s all about the cost-benefit to society, and when it comes to the price of constitutional rights, isn’t the real benefit in nailing the criminal? Except now, the cop violating the Constitution is just a good-faith kinda guy trying his best, even if he makes the occasional mistake. Thankfully, there’s always attenuation to wipe away the tears.

*In my humble opinion, this belongs in the Pantheon of Excellent Cop Rules, alongside The Objectively Lying Cop Test of Whren, and the Reasonably Stupid Cop Test of Heien.

22 thoughts on “The Supreme Court’s Attenuation Deficit Disorder

  1. M. Kase

    We talking the first generation MRAPs or the later ones with all that extra armor on the side and a ridiculously tall weapon station on top?

  2. DaveL

    the Fourth Amendment violation was “at most negligent” and was based on “good-faith mistakes.”

    Who knew that language was going to come back to haunt us?

    Oh yeah, pretty much everybody.

  3. Turk

    I wonder if the same people that support the growing list of exceptions to the Fourth, will likewise feel good about exceptions to the their favored interpretation of the Second (when the court gets around to it)?

    And, of course the First. (Don’t be too sure about how the court will rule on a revenge porn law when it gets around to that one.)

    And, yeah, the others. Except the Third.

    Let us genuflect to The Exception.

  4. JAV

    As a layman, “flagrantly unlawful police misconduct” sounds like it will involve a lot of sneering, mustache-twirling, and prolonged monologues about their evil plans.

  5. Dave

    Yet again, the vapid stupidity of the “police deterrence” rationale for the Fourth Amendment rears its ugly, distorted, tumored head.

    Try as I might, no matter how many times I read “The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” I can’t seem to find anything in it about it only applying to the police, and only for a “deterrent” effect. For some strange reason, I thought that the Constitution’s limitations of power applied to the whole government, not just to one piece of it. And it wasn’t about deterrence, it just forbid certain conduct, period.

    And last I checked, the prosecutor is part of the government, as is the court in a criminal case, and the judge. So that pesky little amendment ought to apply not just to the police, but to the prosecutor and the judge. With that rationale, deterrence police intent and all that shit doesn’t matter. It keeps it simple. If the prosecutor tries to introduce evidence taken illegally, that would also violate the amendment and not be allowed, because it is the government that is still acting. If the judge lets the evidence in, that act by itself also violates the amendment, as again, the judge’s action is government action. It is not a secondary “prophylactic” but a primary limitation on ALL parts of the government, period.

    Yes, yes, I know, this isn’t how the amendment is interpreted and it will never be interpreted this way unless I get five clones of myself on the US Supreme Court, but I can dream can’t I?

    And yes, yes, this rant is perhaps too tangential to the post. Fuck it. Almost all of Fourth Amendment jurisprudence pisses me off because of the above. So post it or trash it, writing this comment made my feelz better for a nanosecond. So there.

      1. Dave

        Courts now treat exclusion of evidence as a “remedy” for police misconduct. I would rather they see it as where inclusion of the illegally taken evidence in court is considered something Courts lack the power to allow under the Fourth Amendment. Because when it is viewed as exclusion as a mere “remedy” after the fact, it leaves too much room for mischief.

        Then in ideal Dave world, the prosecutor would have to have a hearing well in advance of every trial where they established the legality of every piece of evidence that they have in the case, to show the court it has the power to admit that evidence in the first instance. (Of course, defense could stipulate on some of it to save time, but would not be required to do so). This, of course, would also give a nice preview of the prosecutor’s evidence to the defense.

          1. Dave

            You can tell him yourself the next time you wander by a mirror. I hope my insurance covers it.

  6. Jim Tyre

    Flagrantly Unlawful Cop Test.*

    Need a word that starts with a K and that substitutes for Test.

    1. Patrick Maupin

      When you demand a Flagrantly Unlawful Cop Test from the Flagrantly Unlawful Dumbass Judge, you’ll get a Flagrantly Unlawful Cop Resolution.

      You will get definitely get FUCT, but you won’t like the FUCR, and you’ll probably say something worse than FUDJ.

  7. JimEd

    So from a lay-person point of view this ruling says: The cops can detain you and check you for warrants at anytime without any reason (maybe always actually true). And even if the stop was “illegal,” there is not even the fig leaf of consequence during trial for anything they illegally found? Is that an approximately correct lay person description?

    1. SHG Post author

      Who knows? How it will play out is still unclear, but the decision should be read more from the other side, that evidence that should certainly compel suppression of the fruit of an illegal stop, and up to now would have, is no longer necessarily the case.

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