Utah v. Strieff

The Supreme Court held today in Utah v. Strieff that if you stop someone illegally, then run a search on their drivers license and find they have unpaid traffic tickets, giving cause for arrest, and you then arrest them, search them, and find drugs, the drugs are admissible evidence despite arising by means of an illegal stop.  I read through the decision, following the cites and deciding whether I believed the argument.  I don’t.  But I should have saved my time and read Sotomayor’s dissent, which makes the case very clearly and in my view persuasively.

What everybody agrees on:

  • Evidence need not be excluded just because it would not have been obtained but for an illegal stop.  If the officer had stopped Strieff without reasonable cause, and in the course of their conversation, someone wandered by, pointed at Strieff, and said “that’s the guy who robbed me yesterday!” it would be OK to use the accusation as evidence even though it wouldn’t have happened had Strieff not been detained.  “But for” is necessary for exclusion, but not sufficient.
  • The criterion is, rather, supposed to be “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

The majority’s theory is that the information obtained by the offer about the arrest warrant was a “means sufficiently distinguishable.”  Sotomayor disagrees, and so do I.  Running Strieff’s name through the database wasn’t a separate interaction that just happened, by chance, to take place in the spacio-temporal neighborhood of the illegal stop:  it was an attempt to execute the purpose of the illegal stop, and has to be seen as a continuation of that stop.

What’s especially annoying is the majority’s use of cites that don’t support its case.  They say the facts in Segura v. United States are “similar” to those in Strieff.  They are not.  In fact (as the majority concedes) the decision to admit the evidence in Segura was reached under a totally different theory, because in that case, unlike this one, the evidence used at trial would have been obtained whether or not the illegal search had taken place; i.e. even the weaker “but for” standard wasn’t met.  Then they say the request for the warrant in the course of the illegal stop was a “negligibly burdensome precaution for officer safety,” citing Rodriguez v. United States.  In that case, it was remarked that it was legitimate, for the cause of traffic safety, to check for outstanding traffic warrants against a driver stopped for a traffic violation.  So far so good.  But the decision in that case goes on to say that making the driver submit to a dog sniff of his car is not permissible.  “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”

The majority’s theory is that the officer checked Strieff for outstanding warrants because public safety required it.  Sotomayor’s theory is that the officer checked Strieff for outstanding warrants because he had no cause to search Strieff, and wanted some.  Which do you find more plausible?

What’s interesting is that the case that best supports the majority’s theory is one they don’t even directly cite: Johnson v. Louisiana.  In that case, Johnson was arrested without a warrant for a robbery, brought to the courthouse, and put in a lineup, where he was identified by a witness as perpetrator of a different robbery.  The court held that Johnson’s ID in the lineup was admissible even though it resulted from an illegal arrest, because the lineup was ordered separately by the judge after Johnson had been brought in:  this “intervening action” was held to be sufficient separation between the illegal arrest and the evidence obtained.  What I can’t tell from the decision is:  was it just by chance that the victim of the other robbery happened to be present at the lineup for the original robbery?  Or was it common practice to arrest people on a hunch and then put them in a bunch of different lineups to see if anyone IDed them as the perpetrator of a crime?  If it’s the former, I can sort of understand the Court’s reasoning.  If the latter, no way.

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6 thoughts on “Utah v. Strieff

  1. Tom Church says:

    Here is the entirety of Section IV of Sotomayor’s dissent, which seems destined to become an instant classic. Five years from now, this might have been from the majority opinion.

    JUSTICE SOTOMAYOR, dissenting.

    IV
    Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

    Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014).

    The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id., at 17, n. 13.

    The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014).

    This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

    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.

    * * *

    I dissent.

  2. JSE says:

    Everybody’s quoting Section IV but the parts that really sing to me are II and III! Where Sotomayor uses the very words and citations of the majority opinion to dissolve its reasoning completely.

  3. carl says:

    The Republican appointees’ naked anti-defendant/pro-cop bias is well-established, but wtf is wrong with Breyer??

  4. I’m not surprised by the outcome — Breyer is the the rightmost ideologically of four Democratic appointees, especially on criminal matters. If Scalia was alive, he might well have sided with the dissenters — he could be surprisingly liberal on certain criminal cases — but that wouldn’t have changed the final result.

  5. JSE says:

    Also, Tom, I don’t think something can be destined to become an instant classic — either it’s destined to become a classic or it already is, instantly, a classic…!

  6. Tom Church says:

    That was just to mess with you <3

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