In a statewide act of solidarity and reverence, we all read the Declaration of Independence this Independence Day. Indeed, it is the very words of the Declaration of Independence that tell us why the Fourth Amendment was so important to our founders and remains of utmost importance today:
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people.
The defiance in those words is resounding. The people were being harassed by use of the general warrant, which was basically unlimited in scope and duration. In the current time, when fear seems to be dictating and allowing for so much leeway in our constitutional foundations, we need to remember these words. It was Benjamin Franklin who cautioned that “[t]hose who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”
Sadly, the question of the Fourth Amendment’s continued vitality continues to be of real concern, however, given the constant erosion of the Exclusionary Rule. The Exclusionary Rule exists to deter unconstitutional police misconduct. However, the USSC has noted that “the significant costs of the rule have led us to deem it applicable only . . . where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). “Suppression of evidence . . . has always been our last resort, not our first impulse.” Ibid.
So was true on June 26, 2016, when the USSC handed down its decision in Utah v. Strieff, 579 U.S. ___. Based on an anonymous tip, Salt Lake City Police had been watching a suspected drug house. The police suspected drug activity based on visitors coming, staying for a few minutes, then leaving. One such visitor was Mr. Strieff. Police saw Strieff leaving the residence on foot. Police followed him to a nearby gas station, where he was stopped and detained in the parking lot. During the stop, the police requested Strieff’s identification, ran him, and learned that he had an outstanding warrant for a traffic violation, whereupon he was immediately arrested and searched incident to arrest. A baggie of methamphetamine and paraphernalia was discovered during the search. Strieff filed a motion to suppress the unlawful investigatory stop. At the suppression hearing the State conceded that the police did not have reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.
With Justice Thomas writing for the 5–3 majority, the USSC held that the evidence discovered on Strieff was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. In an attenuation analysis, three factors are considered: 1) temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. The third factor is of particular significance. Brown v. Illinois, 422 U.S. 590 (1975). In balancing the factors in this case, the USSC majority weighs the first in favor of Strieff, the second in favor of the State, and then seems to take special care to note that the officer “was at most negligent,” rather than purposeful, in finding the third factor in favor of the State. Seemingly, the majority bends over backwards to weigh the factors in favor of the State.
The women of the USSC—Sotomayor, Kagan, and Ginsburg—stood unified and strong in defense of the Fourth Amendment. Justice Sotomayor says it best in her dissent:
Do not be soothed by the opinion’s technical language: This 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. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.
[T]he Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better. Even officers prone to negligence can learn from courts that exclude illegally obtained evidence. Indeed, they are perhaps the most in need of the education, whether by the judge’s opinion, the prosecutor’s future guidance, or an updated manual on criminal procedure. If the officers are in doubt about what the law requires, exclusion gives them an “incentive to err on the side of constitutional behavior” (internal citations omitted).
The powerful conclusion of Sotomayor’s dissent, where she writes only for herself and drawing on her professional experiences, warns
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. 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 (internal citations omitted).
Kagan’s application of the attenuation doctrine’s factors in her dissent is spot on (and she uses a baseball metaphor throughout to analyze the attenuation factors, which makes for even better reading). These are dissents worth reading.
The women of the court acknowledge Streiff’s situation for exactly what it was: targeted police misconduct with the aim of finding evidence. The ends do not justify the means. What happened to Mr. Streiff is exactly the type of situation the Fourth Amendment was designed to prevent. It’s more than a shame the five-justice majority didn’t see it that way.
The State will certainly rely on the Streiff opinion, but don’t stop filing and litigating suppression issues like this. The dissent is strong, and the majority opinion indicates a different result may have been reached had an analysis of the Brown attenuation factors gone another way.
This 4th Amendment column will be a new and standing column in The Voice in which search and seizure issues will be addressed by a different author every month. Please consider submitting your article (750–1,000 words) for publication.