When Illegal Stops Lead to the Discovery of Outstanding Warrants: Utah v. Strieff

In Utah v. Strieff, the U.S. Supreme Court faces both a narrow and a broad question about the Fourth Amendment exclusionary rule. The narrow, official question is what happens if, after a police officer illegally stops a person in violation of the Fourth Amendment, the officer discovers an outstanding arrest warrant for that person, arrests him, and performs a search incident to arrest. Is the evidence located during that search incident to arrest admissible in evidence against the victim of the initial, unlawful stop? The broader question is what role the exclusionary rule will continue to play in the law of the Fourth Amendment. The Court, if it provides an answer the first question, may, at the same time, provide a response or at least a hint of an answer to the second.

An Illegal Stop

In Terry v. Ohio, the Supreme Court announced that when police briefly stop a person and restrain his freedom to leave, they have performed a “seizure” for Fourth Amendment purposes and must therefore have a reason for doing so. Absent “reasonable suspicion” to believe that the person stopped is in the process of committing a crime (or, as expanded by later cases, has already committed a crime), the police accordingly violate the Fourth Amendment by carrying out an unreasonable seizure. Moreover, if the police gather evidence as a direct result of the unreasonable stop, the evidence will be suppressed as fruit of the Fourth Amendment violation.

In Strieff, the State concedes that the police officer in question lacked reasonable suspicion for the stop that he carried out. An anonymous caller had left a message on a police drug tip hotline, reporting “narcotics activity” at a South Salt Lake City residence. After some intermittent surveillance by an Officer Fackrell, the latter observed “short term traffic” in and out of the house that, though not terribly frequent, made him suspicious and appeared consistent with drug sales activity. During the surveillance, Officer Fackrell saw respondent leave the house and walk toward a convenience store.

The officer intercepted respondent and ordered him to stop, explaining that the officer had been watching the house and that he suspected drug activity. Officer Fackrell then asked respondent what he was doing there and requested identification, which respondent provided. The officer called dispatch and asked for an identification check for outstanding warrants. Dispatch responded that respondent had a “small traffic warrant.” Officer Fackrell then arrested respondent, performed a search incident to the arrest, and found drugs and drug paraphernalia on the suspect. Charged with drug offenses, respondent unsuccessfully moved to suppress the evidence found incident to his arrest, after which he offered a conditional guilty plea to the drug charges, reserving the right to appeal the denial of suppression.

Causal Link

When the Supreme Court considers whether evidence must be suppressed as fruit of an unreasonable search or seizure under the Fourth Amendment, it generally considers what the causal link is between the illegal police conduct and the evidence in question, pursuant to the classic “fruit of the poisonous tree” case, Wong Sun v. United States. In Strieff, there plainly was a causal link between the illegal stop and the evidence obtained by the officer, because the initial stop is what gave the officer the opportunity to investigate outstanding warrants associated with the man he had stopped, an investigation that ultimately led to the arrest and the search incident to that arrest. Yet one could, if one wished to, characterize the existence of an outstanding warrant as an intervening cause of the search that turned up the evidence, since the warrant itself pre-existed the illegal stop. There was, in other words, “but for” causation (factual causation), but there might not have been “proximate” cause (or legal cause), the latter of which requires a normative rather than purely factual inquiry.

To understand the complexity of the causal question, consider the case of New York v. Harris. In Harris, the police arrested a person at home without an arrest warrant, in violation of the Fourth Amendment, as provided in Payton v. New York. Police obtained a statement in the immediate aftermath of the arrest (post-Miranda warnings) as well as a later statement, and the issue arose whether the later statement was the fruit of the Payton violation. The Court held that it was not, reasoning that it was the lawful custody of Harris outside of his home (permissible under United States v. Watson on the basis of probable cause, even absent a warrant) rather than the illegal, warrantless entry into his home, that led to the incriminating statement that he made. As should be clear, this conclusion is a matter of characterization rather than simple factual assessment. It is quite possible that if police had waited until Harris spontaneously left his home before arresting him, he would not have made the later incriminating statement that he made after being arrested unlawfully in his home.

The Court could thus, in Strieff, using similar reasoning to that which it applied in Harris, find that the lawful arrest based on the outstanding warrant was the true cause for the search incident to arrest that yielded the drugs and drug paraphernalia. If it so found, then the evidence would be admissible. Yet Harris itself could point in the opposite direction. Unlike the statements that were deemed admissible there, statements given quite some time after the initial illegal home entry by the police, the identification of the outstanding arrest warrant and the subsequent search incident to arrest in Strieff took place immediately after the police officer unlawfully stopped respondent. The drug evidence that the police found in Strieff thus seems much more directly tied to the initial illegal conduct by police, both temporally and causally, than the statements obtained in Harris. Indeed, absent the illegal stop, it appears highly unlikely that the outstanding warrant against respondent would have ever come to Officer Fackrell’s attention, and the latter accordingly would not have been in any position to arrest respondent and find the evidence that happened to be on him at the time.

Language in Terry v. Ohio

Though the Court in Terry v. Ohio ruled in favor of a Fourth Amendment right against stops in the absence of reasonable suspicion, it also discussed the role of the exclusionary rule in a manner that might hurt the case for exclusion in Strieff. It said that when officers are engaged in on-the-street policing, as opposed to when they are engaged in investigating completed crimes for which they already have probable cause, they are likely to be less responsive to the influence of the exclusionary rule than they would otherwise be. According to the Court, police are most likely to alter their behavior in response to the exclusionary rule when they are specifically aiming their conduct at locating evidence of crime.

In on-the-street policing, by contrast, police have very different objectives including, most relevantly for our purposes, preventing crime before it happens (a legitimate, distinct objective) and engaging in invidious harassment (an illegitimate, distinct objective). When pursuing these aims, the Court said in Terry, the police are not especially interested in whether any evidence they happen to find will or will not be admissible. That is because, by hypothesis, they are not primarily looking for evidence at all. In the Court’s words, “[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial.” Despite this discussion in Terry, however, the Court ultimately held there that the Fourth Amendment and the exclusionary rule do apply to stops and frisks. It admitted the evidence in the case, because it found that police had complied with the Fourth Amendment, not because exclusion has no application to on-the-street encounters.

If the Court decides to invoke and rely on its language in Terry regarding the limits of exclusion, it could determine that the fruit of the poisonous tree doctrine—the doctrine through which evidence located as a result of unconstitutional police conduct must be suppressed—should only rarely be applied to cases in which the police misconduct takes the form of an unreasonable stop in the context of street policing. It might say that although the arrest and search incident to arrest of Strieff began with an unreasonable stop, the existence of an outstanding warrant provided a sufficient intervening cause to cleanse the search of the taint of the unreasonable stop. This would be an unusual finding, given how directly the illegal stop led to the discovery of the evidence, but the Court could go that route if it were so inclined, and some of the reasoning in Terry would support such a move.

Attitude Toward Exclusion

Why might the Court decide to use the referenced Terry language to find the evidence at issue admissible? One answer is that the Court has become increasingly hostile to the exclusionary rule over time. It has said, in various cases, including Herring v. United States, that suppression should be a last resort and ought to be limited to situations in which there has been a flagrant violation of the Fourth Amendment. Over time, the Court has emphasized how costly the exclusionary rule is and has tried to limit its application to cases in which the cost is worthwhile.

If the Court, as currently constituted, believes that the exclusionary rule should be rarely applied and limited to the most egregious sorts of Fourth Amendment violations, then it will likely rule against exclusion in Strieff. Though the police officer here stopped a person without reasonable suspicion, he did have some suspicion (and therefore was not simply stopping a man for no reason) and, as it turned out, there was an outstanding warrant for the person’s arrest, a warrant that carried with it the authorization for a search incident to arrest, which the police officer performed. The doctrine, as it currently stands, has space for such a ruling, though it would represent a doctrinal departure because of the directness of the link between the stop and the discovery of evidence.

If, on the other hand, the Court still regards the exclusionary rule as having an important role to play in guarding the right against unreasonable searches and seizures, then it can use this case to say so, without having to depart from existing precedents. The Court could also simply find that the evidence must be suppressed as the direct fruit of an unreasonable seizure, without having to speak at length about the role of exclusion in enforcing the Fourth Amendment.

What the Court will decide to do may turn on the passing of Justice Scalia, a justice who generally sided with the conservatives in sharply limiting the situations that trigger the exclusionary rule. The Court may now be evenly split between those more sympathetic to exclusionary rule claims and those more hostile to them. At oral argument, some of those sympathetic to such claims seemed especially concerned about addressing police harassment, a matter that the Court in Terry had proposed might not be best suited to the exclusionary remedy. Given the split, though, we may see a ruling that fails to answer any of the questions posed by this case, affirmance by an equally divided Court.