The Supreme Court heard oral argument in Utah v. Strieff yesterday. That cert was granted at all was cause for serious concern. It was an easy case. The Utah Supreme Court upheld suppression. These factors added up to a huge problem, as nothing good could come of the Supremes taking the case.
The case, Utah v. Strieff, started in 2006, when the Salt Lake City police got an anonymous tip reporting drug activity at a house. An officer monitored the house for several days and became suspicious at the number of people he saw entering and leaving. When one of those people, Edward Strieff, left to walk to a nearby convenience store, the officer stopped him and asked for his identification.
A routine check revealed that Mr. Strieff had an outstanding “small traffic warrant.” The officer arrested him based on that earlier warrant, searched him and found a bag of methamphetamine and drug paraphernalia in his pockets.
At the time they seized Strieff, they had no reasonable suspicion that he had committed a crime. They just grabbed him. That they learned after the fact that he had an outstanding warrant was fortuitous. Based upon the existence of the warrant, they arrested him and searched. Boom. Drugs.
Easy case. No probable cause, no warrant check. No warrant, no basis for arrest. No arrest, no search. Classic “fruit of the poisonous tree” stuff. But the Supremes don’t take cases because they’re easy and there’s nothing more that needs to be said.
The New York Times tried to offer the optimist’s spin on the case:
The court has been weakening the Fourth Amendment’s defense against illegal searches for years. Monday’s case gives the justices an opportunity to restore some of its power.
Restore some of its power is a stretch. Far more likely was the “no harm, no foul” rule, that since Strieff had a warrant, had drugs, why should he walk on a “technicality.” After all, the cops weren’t out there hassling guys for kicks, right?
At Monday’s argument, lawyers for Utah argued that the officer’s stop of Mr. Strieff was a reasonable, good-faith mistake and that suppressing the evidence would harm society far more than it would deter other officers from making similar mistakes.
At SCOTUSBlog, Orin Kerr explained the view for those who don’t prefer to wear rose-colored glasses.
More specifically, here’s the doctrinal question presented: Does the exclusionary rule apply when an officer learns during an illegal Terry stop that that there is a warrant for the suspect’s arrest, he arrests the suspect on the warrant, and he finds incriminating evidence during the search incident to arrest?
As a practical matter, that’s a pretty important question. But this case is also about a big conceptual question: What is the future of the exclusionary rule? This is the Court’s first exclusionary rule case since Davis v. United States in 2011. Davis left the state of the law quite uncertain, giving this case the potential to be a major decision. The Court may stick to its traditional doctrine on the exclusionary rule, in which case Edward Strieff has a strong argument that he should prevail. On the other hand, the Court may use this case to further chip away at the exclusionary rule. If so, all bets are off.
The issue is attenuation, how far away from the constitutional violation (in this case, the unlawful initial seizure) was the evidence sought to be suppressed. If far enough away, then does suppression serve its intended purpose of deterring an unconstitutional seizure and, instead, serve only to free the criminal? The societal benefit of deterrence is lost, and the societal benefit of prosecuting a criminal is lost. All because a police officer made a “reasonable” mistake.
When explained Orin’s way, it sounds a little less silly than the Times explanation, and it is.
[I]f there is only an attenuated connection between the constitutional violation and the discovery of the evidence, then the violation is not the proximate cause of the discovery and the evidence should come in despite the violation. It’s a pretty sensible doctrine, I think. Officers are most culpable and most easily deterred about the reasonably foreseeable consequences of their acts that are proximately caused by them.
Observers of oral argument suggest that the Supremes appeared split along ideological lines, with the liberal justices siding with affirmance and the conservative judges siding with reversal.
But as Justice Sonia Sotomayor pointed out during oral argument, this approach would give far too much latitude to law enforcement: “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”
As the Court is now comprised of eight judges, a split would leave the Utah Supreme Court’s decision intact, and create no new precedent. While Orin’s suggestion that a step beyond the seizure, in this case the open warrant, is enough “attenuation” to justify ignoring an unlawful seizure is a scary proposition.
There are a lot of open warrants out there, and this would be an incentive for more. And there are a lot of mistaken open warrants; warrants that were issued by mistake (fine paid, but mismarked in the computer, for example), warrants that were closed by the police records and never changed to reflect that fact, and tons of opportunity for mischief.
But if it results in a search, and that search reveals a crime, how far down the line does that initial unconstitutional seizure serve to give rise to suppression of the evidence? We may have dodged a bullet on Strieff. But there will be another bullet coming soon enough. This was an easy case. Unless the Court wants to change something.