A Potential Landmine in Waiting in Utah v. Strieff

Posted in: Criminal Procedure

On June 20, the U.S. Supreme Court decided the case of Utah v. Strieff. The issue before the Court mainly concerned the role of the exclusionary rule in regulating unreasonable stops under the Fourth Amendment. The Court relied on the attenuation doctrine to admit evidence despite an illegal stop. Yet a small throwaway line in the opinion suggests that Strieff could come to spell the death of the exclusionary rule, if taken to its logical conclusion.

Facts of Strieff

In Strieff, police received an anonymous tip that drug dealing was taking place in a particular residential building. A narcotics detective, Officer Douglas Fackrell, observed the building intermittently for approximately a week, and he saw what he regarded as a suspicious number of people coming to visit for very short times and then leaving, behavior that he associated with drug activity. While making these observations, Officer Fackrell saw Edward Strieff emerge from the building, though there is no indication that the officer knew him to be one of the visitors who spent a suspiciously short amount of time in the building.

As the parties concede, the officer lacked any reasonable suspicion on the basis of which it would have been lawful for him to stop Strieff. Nonetheless, Officer Fackrell stopped him, indicated his interest in finding out what was going on in the building, and then asked Strieff for identification. Strieff provided identification, and the officer called it into dispatch and learned that there was an outstanding warrant for Strieff’s arrest on a traffic violation. The officer promptly arrested Strieff and performed a search incident to arrest, during which he found methamphetamine and drug paraphernalia. Strieff was charged with possession of these illegal items but asserted that the items should be suppressed because they resulted from his having been unlawfully stopped, in violation of the Fourth Amendment.

Supreme Court’s Resolution of the Case: Attenuation Doctrine

In an opinion by Justice Thomas, the Supreme Court held that the evidence found on Strieff was properly admissible against him. The reasoning was as follows. Ordinarily, when police violate the Fourth Amendment, the evidence that they find as a result is suppressed under the exclusionary rule. However, there are some exceptions to the exclusionary rule, to take account of the fact that excluding evidence is very costly and its benefits—in terms of deterring police violations of the Fourth Amendment—do not always outweigh these costs. The relevant exception in this case, suggested the Court, is the attenuation doctrine.

The attenuation doctrine operates in those cases in which the evidence that police find is not a direct consequence of their illegal conduct but is instead derived from the exploitation of the initial illegality. This concept is also known as the “fruit of the poisonous tree” doctrine, whereby evidence indirectly resulting from Fourth Amendment violations might nonetheless be suppressed as fruit of the violations, but they might not if the evidence is sufficiently remote relative to the violation. In this case, the Court applied the Brown v. Illinois attenuation doctrine, which has three components.

First, the Court looked at time. How much time passed between the officer’s initial illegal conduct and the locating of the evidence found on the suspect? In this case, the Court acknowledged that very little time passed between the detention of the suspect and the finding of the drugs and drug paraphernalia during the search incident to the arrest of Strieff. So factor one cut in favor of exclusion.

Second, the Court considered intervening circumstances. Intervening circumstances are events that happen between the initial illegal conduct by the police and the finding of the evidence, events to which the finding of the evidence might be causally attributed, thereby attenuating the causal relationship between the illegal police behavior and the evidence found. In this case, the Court said that the existence of an outstanding warrant against Strieff, located when the officer called dispatch, constituted an intervening circumstance that helped attenuate the causal relationship between the Fourth Amendment violation (the original detention) and the finding of the evidence. Noting that the outstanding warrant pre-existed the stop of the suspect and that once he found out about the warrant, the officer did what the warrant lawfully provided for, namely, arresting the suspect and searching him incident to arrest, the Court regarded the “intervening circumstances” prong of the attenuation doctrine as amply satisfied.

One peculiarity of calling the outstanding warrant an intervening circumstance is that, as many courts previously thought, intervening circumstances are generally understood to be surprising or spontaneous events that interrupt the flow of what is happening. Indeed, prior to Strieff, a number of courts believed that an event could count as “intervening” only if it were a voluntary act by the suspect, such as providing a spontaneous confession or giving his consent to a search. Since the officer here specifically sought out an outstanding warrant almost immediately after stopping the suspect (by asking for identification and then contacting dispatch regarding outstanding warrants), the locating of such a warrant seems like the opposite of an intervening circumstance. By focusing on the existence of the warrant prior to the stop, however, the Court seemed somewhat to obscure the fact that the discovery of the warrant (what I would view as the relevant event in the sequence) seemed to follow quite naturally from the deliberate actions of the officer.

The third factor the Court contemplated was flagrancy. That is, how flagrant was the Fourth Amendment violation? If it were outrageous, then it would be more difficult for intervening circumstances to attenuate the causal link between the illegality and the evidence than if it were something more like negligence. The Court concluded that the officer was at most negligent in his actions. Had he simply spoken to the suspect instead of detaining him, or had he observed the suspect long enough to know a little more about him that could have given rise to reasonable suspicion, then his actions might have been lawful. Lacking flagrancy of the sort that would make it very important to deter his conduct (important enough to pay the cost of exclusion), the Court concluded that the three factors added up to satisfying the attenuation doctrine.

Problems With Strieff

Justice Sotomayor did an excellent job in her dissent of showing just how dangerous this opinion is, particularly given that there are a very large number of outstanding warrants for minor offenses at any given time, thus giving police an incentive to stop people for no reason at all in the hopes of then finding an outstanding warrant and searching incident to arrest on the basis of that warrant. Particularly troublesome, as Justice Sotomayor observed, is the fact that in minority communities (such as Ferguson, Missouri, and Newark, New Jersey), there are both many outstanding warrants for minor offenses and much police stopping of suspects based on racial profiling. Combining the two, she suggested that minority communities will be at the mercy of the police, who may then sweep them into the system and subject them to the many indignities that the Court has already permitted for lawfully arrested individuals (including, for example, strip searches upon entry into jail, under Florence v. Board of Chosen Freeholders).

Another problem with Strieff lies in a throwaway line in which the Court said that it would not in this case consider the possibility that the very existence of the outstanding warrant makes the initial stop lawful, despite the absence of reasonable suspicion. The relevant quote is this: “because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant’s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence” (emphasis added).

What is the problem with this possibility? Well, it means that a stop of an individual, a “seizure” under the Fourth Amendment, may be judged not on the basis of whether police had a pre-existing justification for the stop but instead, on the basis of whether there turned out, after the fact, to be a good reason for the person to be stopped. Consider the implications of such an approach. It is not a great distance from this (allowing an after-the-fact discovery of a warrant to justify a stop) to an approach that says that if police stop someone who happens to be guilty of committing some offense, then that fact (which fact, the Court might be quick to note, pre-existed the stop) could retroactively justify the police officer’s detention and suspicionless search of the suspect. Once after-the-fact discoveries can retroactively justify suspicion-free seizures and searches by the police, then there will, by definition, be virtually no such thing as a piece of evidence that ought to be suppressed, since the evidence itself retroactively justifies whatever steps might have been taken to yield its discovery.

The Court is not there yet, of course. First, the Court left for another day the question of whether a pre-existing (but yet undiscovered) warrant might retroactively justify the detention of a suspect. It may ultimately answer the question “no.” Second, the existence of a warrant means that at least someone had probable cause to believe that this suspect was guilty of committing a criminal offense prior to anyone detaining him, whereas the mere existence of evidence on his person would not necessarily indicate that any police officer ever had reason to suspect him of a crime. And third, even if a person’s guilt of an offense renders him retroactively “fair game” to police who stop or search him, there might be room to distinguish between people on whom there is evidence of crime (who might themselves be innocent of that crime) and people who are actually guilty (and to whom the “retroactive justification” might then apply).

Notwithstanding these caveats, there is reason to be concerned by the Court’s suggestion that an outstanding warrant’s very existence might retroactively justify the detention of a suspect by a police officer who lacks any reasonable suspicion regarding that suspect. This would seem to declare “open season” on suspects, given the large number of outstanding warrants at any given time, even if a police department adopted a policy of stopping people for no good reason in the hopes of finding someone with an outstanding warrant against him on whom there might be some evidence to be located during a search incident to arrest. It is far safer, for the public in need of protection from police overreach, for police to act prospectively on the basis of what they have reason to think and what they know regarding a suspect. Absent such advance knowledge, I sincerely hope that the Court in the future is clearer about directing police to leave people alone. My hope is that the throwaway line in Strieff was the expression of a wish by Justice Thomas, rather than a plan by a majority of the Supreme Court.