Criminal Procedure is a poorly named class: you don’t learn how to become a kingpin. It should just be called “Totally Legit State-Sponsored Violence.” We read case after case justifying horrific police misconduct. The court goes out of its way to prioritize officer safety and discretion. It’s insane. One case was only an excerpt: Utah v. Strieff.
Me being me, I ignored the reading assigned and read Thomas’ full opinion and Sonia’s dissent. Then, I reread the dissent. And then I told my friends and family about the dissent. And now, Internet, I am here to share the good news with you: I love this dissent and so will you. Let’s start with the first paragraph:
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. 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. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
Okay, wait the police can do what? I’m over here minding my own business literally just existing and the police can just “Give me your identification, Ma’am”? Shouldn’t they need to–oh, I dunno–suspect that I am one of the uber-terrible criminals they are supposedly hunting for with their military gear? Aside: shouldn’t I have learned this without going to law school? Ugh.
Here’s the setup: Strieff walks out of a house; officer stopped him, questioned him, took his identification, and ran it through some sort of active warrant database. The officer did not suspect Strieff of wrongdoing. The State of Utah recognizes “this stop was illegal.” There is also precedent (which supposedly matters):
An officer breaches that protection when he detains a pedestrian to check his license without any evidence that the person is engaged in a crime. — Delaware v. Prouse
The officer deepens the breach when he prolongs the detention just to fish further for evidence of wrongdoing. — Rodriguez v. United States
After his arrest, the officer searched Strieff, found drugs, and Strieff was ultimately charged with illegal drug possession. That’s the only reason this case even happened, the only reason the Supremes heard it, the only reason I read it, and the only reason why I am telling everyone about it. If the officer had not found drugs after this totally illegal (aka unconstitutional) seizure, Streiff would have basically no recourse. Sure, he *could* file a civil rights lawsuit, but oh wait, qualified immunity! Double ugh.
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 . . . When “lawless police conduct” uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.
The law calls this ill-gotten evidence “fruit of the poisonous tree” and excludes it from admission at trial under, wait for it, the Exclusionary Rule. The *idea* is that officers will follow the rules and build a case based on evidence they can actually admit to the court. Scoff along with me! Scoff scoff scoff.
Applying the exclusionary rule, the Utah Supreme Court correctly decided that Strieff’s drugs must be excluded because the officer exploited his illegal stop to discover them. The officer found the drugs only after learning of Strieff’s traffic violation; and he learned of Strieff’s traffic violation only because he unlawfully stopped Strieff to check his driver’s license.
Did you catch that procedural tidbit? Both Utah’s Supreme Court and the State of Utah agree this was an illegal stop. Utah, progressive bastion and trend setter, thinks their officer crossed a constitutional line; the Supremes think otherwise.
To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.
Who cares about all that pesky illegal or unconstitutional misconduct, right? There’s a warrant now! So, everything is fine. The Court goes so far as to cobble together a bogus “good-faith mistakes” argument that characterizes the officer’s illegal, unconstitutional misconduct as “‘negligent’ and therefore incapable of being deterred by the exclusionary rule.”
To recap: police can stop you for no reason, demand your ID, and then arrest and search you if you happen to have any active warrants in their handy database. But I mean, come on, how common are warrants anyway?
Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant . . . When a person on probation drinks alcohol or breaks curfew, a court will issue a warrant.
That’s all it takes. And there are a lot:
The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. Even these sources may not track the “staggering” numbers of warrants, “ ‘drawers and drawers’ ” full, that many cities issue for traffic violations and ordinance infractions.
Remember Ferguson, Missouri? A 2015 Department of Justice Investigation of the Ferguson Police Department revealed that in a city of 21,000 people, 16,000 had outstanding warrants (76%). Under Strieff, an officer can just walk up to over 3/4 of the people in Ferguson and arrest them. I don’t remember this during any of the media coverage, but maybe I missed it. And it’s not just Ferguson. Sonia drops stats from New Orleans, Newark, and St. Louis. It’s widespread, systemic, and ripe for abuse. I mean “good-faith mistakes.” Right.
If you never read another case, just read this final section from Sonia’s dissent:
Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996) . That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873 –887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972) , what you were wearing, United States v. Sokolow, 490 U. S. 1 –5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119 –125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146 –155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014).
The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991) . Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “ ‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ” Id., at 17, n. 13.
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318 –324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014).
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
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.
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. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). 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.
Now that’s a dissent.
Learn more about this case and these ideas: