This article was published by The McAlvany Intelligence Advisor on Wednesday, June 22, 2016:
Supreme Court Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg dissented inUtah v. Strieff, a decision that was announced by the court on Monday. On the surface the decision appeared to allow an unconstitutional expansion of police powers.
In a case dating back to 2006, a narcotics detective in Salt Lake City was watching a suspected drug house. He noticed a man leaving the house and the detective stopped him, demanding to know what he was doing in the house. In the process he demanded his identification, which he forwarded to his dispatcher to run through the police database. When he learned that the man had an outstanding warrant for a traffic violation, the detective, Douglas Fackrell, arrested Edward Strieff, searched him, and found various drug-related paraphernalia.
Strieff moved to suppress the damning evidence, claiming under the “exclusionary rule” that the evidence was seized illegally and therefore couldn’t be used against him. The trial court denied Strieff’s motion, as did the Utah Court of Appeals. The Utah’s Supreme Court reversed, and found for Strieff. Utah’s state attorney general got involved, appealing the decision to the Supreme Court, resulting in the decision announced on Monday, ruling for Fackrell, 5-3.
Justice Clarence Thomas wrote the majority opinion, in which he explained how the evidence illegally obtained could be used against Strieff:
In this case, there was no flagrant police misconduct. Therefore, Office Fackrell’s discovery of a valid, pre-existing, and untainted arrest warrant attenuated [made the evidence admissible] the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.
If Fackrell hadn’t found the arrest warrant, he was guilty of an illegal stop because it was a fishing expedition, lacking “reasonable suspicion.” Wrote Thomas:
The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Office Fackrell to arrest Strieff.
And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.
This was just too much for Justice Kagan. Once a police officer is informed of Monday’s decision “he knows that the stop may well yield admissible evidence. So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution.”
The officer’s incentive to violate the Constitution thus increases. From here on, he sees potential advantage in stopping individuals without reasonable suspicion – exactly the temptation the exclusionary rule is supposed to remove.
[Defendant] Strieff argues that, because of a prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely. Such wanton conduct would expose police to civil liability.
Justice Sotomayor didn’t buy any of that. Seizing the opportunity to speak directly to the Black Lives Matter supporters, she wrote:
Do not be soothed by the opinion’s technical language: this allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants – even if you’re doing nothing wrong….
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.
She could have stopped there. She has a legitimate beef. Some police may take Monday’s decision as an opportunity to conduct illegal stops, knowing that most won’t sue if they find nothing. If they find something, then they enjoy knowing that they’ve had a hand in fighting crime.
But, no. Sotomayor had to extend her rant so far that the other two dissenting liberals distanced themselves from it:
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.
This comes short of incitement to riot, but not by much. Sotomayor ignores the simple fact that people of color have higher arrest rates because they commit more of the crimes.
What’s ironic is that, had Justice Antonin Scalia been alive to contribute to the decision, the exclusionary rule would have suffered greatly. He was no fan of it, holding that its protection comes at much too high a price.