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.