The United States Supreme Court is currently pondering a case that may change the way modern America polices its communities. I realize that this is a pretty bold statement to make, especially in light of the ongoing conversation in America over the last year or two over policing standards especially in minority communities, but the impact of the decision in this case could be such that it will only further deepen the divide between police and the communities they serve.
The Exclusionary Rule
The case is Utah v. Strieff, in which the question the Justices are grappling with revolves around the application of the so-called ‘Exclusionary Rule.’ The Fourth Amendment protects us against unreasonable searches and seizures, but there’s no mechanism for enforcing that protection. The exclusionary rule is a
judicial remedy that gives life to that protection.
State v. Strieff, 357 P.3d 532, 538 (Utah 2015). It is the punishment imposed upon the Government for failing to abide by the restrictions of the Fourth Amendment. In simpler terms, evidence that is obtained in violation of the Fourth Amendment is not admissible at trial against an accused – thus the evidence is “excluded.” In deciding whether to exclude evidence illegally collected, courts apply the “fruit of the poisonous tree” doctrine: whether there is a causal link between the illegal police conduct and the evidence in question.
As the CT Supreme Court explained:
Thus, evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint…. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).” (Internal quotation marks omitted.) State v. Luurtsema, 262 Conn. 179, 189, 811 A.2d 223 (2002). In other words, “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Applying the standard exclusionary rule in this case produces a simple result: Strieff was illegally stopped in his car and as a result of that illegal stop, the police discovered he had a warrant and arrested him. As a result of that arrest, they conducted a search of his person and found contraband.
There is the classic “but-for” connection: but for the illegal stop, they wouldn’t have found his warrant and wouldn’t have arrested him and wouldn’t have found the contraband.
Exceptions to the Rule
Now, there are three circumstances in which such evidence is nonetheless admissible: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception. It is this third exception that Utah relies on: the existence of a warrant is an intervening circumstance that renders the illegal stop irrelevant.
Courts across the country are divided on the issue and this is what the Supreme Court is asked to decide. But the issue runs deeper: as at least two commentators have noted, the future of the exclusionary rule may hang in the balance here.
Whether the court merely decides that the exclusionary rule does not apply when there is a legal warrant after an illegal Fourth Amendment event, or whether it goes further and erodes the protection of the exclusionary rule in all cases, the impact will be tremendous.
Impact on Policing
Just last week, Central Connecticut State University released its annual report on racial profiling in Connecticut. The news wasn’t much better than previous years:
But when researchers reviewed stops made during daylight hours, when they said officers could see the race and ethnicity of drivers, Hispanics were nearly 14 percent more likely to be pulled over and blacks were about 7 percent more likely to be stopped than they were at night.
The report also says minorities were more likely to get misdemeanor summons for speeding and other infractions, while whites were more likely to get written warnings.
And as last year’s report revealed:
The six-month data also showed that black and Hispanic motorists were at least twice as likely as a white motorist to be subjected to a consensual search, though the stops of white drivers were more likely to yield contraband.
And now the problems with any opinion in Strieff limiting the exclusionary rule or doing away with it become clear. If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.
Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the lack of an exclusionary rule – or the existence of a warrant as an intervening circumstance – would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.
Finally, the CT Supreme Court recently approved of a stop and a search in a case where there was no suspicion of criminal activity at the time of the stop, but merely based on past observations. They also ruled:
Officer Lopa was approaching a person he knew to traffic in large quantities of marijuana and cash. Accordingly, it was reasonable to suspect that the defendant might be armed to safeguard the drugs and the cash.
Bolstered by the lack of an exclusionary rule, officers would have unfettered power to detain, search and investigate individuals in the absence of reasonable suspicion or probable cause. This, as the data bears out, would unfairly target minority communities, but would also render the protections of the Fourth Amendment nearly meaningless.