The Supreme Court opens the door for unfounded police stops

Just two days ago, the Supreme Court of the United States opened the door to widespread unfounded police detentions with its decision in Utah v. Strieff. Justice Sotomayor, in a dissent joined by Justice Ginsburg, put her concerns bluntly and up front. She wrote: “[t]his 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.” Utah v. Strieff, 579 U.S. ___ (2016) (Justice Sotomayor, dissenting.) Even worse though, the case seems to encourage such behavior.

As the name suggests, the case comes out of Utah. It began with an anonymous tip to the South Salt Lake City Police Department’s drug-tip line. Utah v. Strieff, 579 U.S. ___ (2016) slip. op. at 2. The caller reported simply that there was “narcotics activity” at a particular house. Id. Narcotics detective Douglas Fackrell investigated the house over the course of the next week. Id. He noticed that there were frequent visitors who would come and then leave a few minutes later—a sign of potential drug dealing. Id.

One of the visitors to the house was Mr. Strieff. Officer Fackrell saw Strieff leave the house and then walk to a nearby convenience store. Id. In the parking lot, Office Fackrell detained Mr. Strieff, told Mr. Strieff that he was a police officer, and asked Strieff what he was doing.  Id. The officer then asked Mr. Strieff for his identification card, which Mr. Strieff Provided. Id.

Officer Fackrell relayed Mr. Strieff’s information to the police dispatcher who informed Office Fackrell that Mr. Strieff had an outstanding arrest warrant for a traffic violation. Id. Officer Fackrell arrested Mr. Strieff pursuant to that warrant and then searched him incident to the arrest. (An officer is generally allowed to conduct a search of the person of anyone whom he arrests. See Arizona v. Gant, 556 U.S. 332, 339 (2009).) During that search, the officer found a baggie of methamphetamine and other drug paraphernalia. Id.

At trial for possession of the drugs and drug paraphernalia, Mr. Strieff moved to suppress the evidence because it was derived from the initial stop which he claimed was unlawful. Id.  The state conceded that the officer did not have reasonable suspicion to stop Mr. Strieff (i.e., that the stop was unlawful), but argued that the evidence “should not be suppressed because the existence of the valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.” Id.

The trial court agreed and admitted the evidence. Id. 2-3. It explained that although the short time between the stop and the discovery of the evidence weighed in favor of its suppression, the valid arrest warrant was an “extraordinary intervening circumstance” and it also “stressed the absence of flagrant misconduct by Officer Fackrell who was coordinating a legitimate investigation of the house.” Id. at 3.

After the trial court refused to suppress the evidence, Strieff entered a conditional guilty plea reserving his right to appeal the decision.

The case made its way to the Utah Court of Appeals, which affirmed the trial court’s decision and then the Supreme Court of Utah, which reversed the decision. The Supreme Court of the United States then took the case to resolve a split on the question of how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. Id. at 3.

The majority opinion, written by Justice Thomas, affirmed the trial court’s decision to admit the evidence. Justice Thomas first explained that the attenuation doctrine does apply here because attenuation is “not limited to independent acts by the defendant.” Id. at 5. He then went on to analyze the case under the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975). Id. Those factors are: (1) the time between the unconstitutional conduct and the discovery of evidence; (2) the presence of intervening circumstances; and (3) the purpose and the flagrancy of the officer misconduct.

Although Justice Thomas conceded that the first factor weighed in favor of suppressing the evidence, he explained that the other two factors outweighed the first. With respect to the warrant, he wrote that it was an “intervening circumstance” and noted that it “was valid”, predated Officer Fackrell’s investigation, and was “entirely unconnected to the stop.” Id. Moreover, when Officer Fackrell “discovered the warrant he had an obligation” to execute it. Id.

This part of the opinion is fairly reasonable. The warrant did exist, and the officer did have an obligation to arrest. It’s the next part of the opinion that goes astray.

The majority goes on to say that the officer’s conduct was not flagrant as a legal matter in that there was “no indication that [the] unlawful stop was part of a systemic or recurrent police misconduct.” Id. at 8. While this is true in the sense that it appears there was no evidence that Officer Fackrell was simply walking around checking ID’s for the fun of it, it is a bit disingenuous. At trial, the state conceded that Officer Fackrell did not even have “reasonable suspicion” to stop Mr. Strieff—that is, it conceded that the stop was unlawful.  So Officer Fackrell knew he couldn’t stop Mr. Strieff but did it anyway. His decision to then ask for Mr. Strieff’s credentials and subsequently run a check on them was almost certainly made knowing that he could arrest Mr. Strieff and search him incident to that arrest under Arizona v. Gant if Mr. Strieff had a warrant out for anything. Indeed, since Mr. Strieff had come out of a house that Officer Fackrell was surveilling for drug activity, he probably hoped to find drugs on Mr. Strieff. (Which, of course, he did.)

This is why the case is problematic. It appears to me—though obviously not to the majority—that Officer Fackrell made a calculated gamble to stop Strieff, get his identity, and run a check to see if he had any outstanding warrants. If, under these circumstances, anything that is found during the search made incident to arrest is admissible, then police officers have a strong incentive to continue this type of behavior. Even if the initial stop is unlawful, if a subsequent credential check returns an outstanding warrant the officer can then arrest the person pursuant to the warrant and search them knowing that whatever evidence of criminal activity they find—even if it’s totally unrelated to the arrest warrant—will not be suppressed due to the illegality of the stop.

Under this opinion, law enforcement is in a win-win situation. If they make an illegal stop, and there’s no warrant on the detainee they simply let them go on their way. Most people, at this point, will just be glad to be left alone. On the other hand, if an officer makes an illegal stop based on a hunch and it turns out the detainee has an outstanding warrant—something that is not particularly unusual in many less affluent communities—then the officer has earned an evidentiary bonus round. He can now do a physical search of the detainee incident to the arrest and be assured that whatever evidence he finds will be admitted in court. It’s hard to fathom why an officer wouldn’t do this.

And while Justice Thomas seems to take the optimistic view that the threat of civil suits should be enough to prevent the police from abusing this decision that seems unlikely. The court’s decisions have a huge influence on police behavior. Police departments rightfully train officers to aggressively use tactics that go right up to the boundaries of constitutionality. We should be grateful for this because aggressive law enforcement can save lives. But we should also recognize that this behavior means that is imperative that the courts fashions constitutional boundaries in ways that encourage police to respect citizen’s rights. In Utah v Strieff, the Court failed to do that.