Utah v. Strieff: legalizing illegal stops

It used to be a basic tenet of American Constitutional jurisprudence that if police illegally stop an individual and find some incriminating evidence on him, the evidence must be suppressed, that is, it cannot be used as evidence to prove the guilt of that individual.

The rationale behind this rule – the “exclusionary rule” – is fairly straightforward: it is a judicial remedy that gives life to the Fourth Amendment’s protections against illegal searches and seizures. If there were no punishment for violating the Constitution, then violations of the Constitution would be meaningless. Now, this is not to say that there aren’t exceptions to this rule – certainly there are: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception.

The United States Supreme Court just drove a police cruiser sized hole through that third exception. In Utah v. Strieff, the Supreme Court held that barring “flagrant misconduct” – whatever that may be- the evidence seized as a result of an illegal stop does not need to be suppressed as long as there is an intervening act, such as, in the case of Strieff, an outstanding warrant. The outstanding warrant gave the officer permission to arrest Strieff, which gave him authority to search him. Therefore, the originial illegality, the reason giving rise to the stop in the first place, is irrelevant.

Attenuation

Typically, the attenuation exception has required much greater distance between the illegality and the evidence sought to be suppressed. The same Supreme Court once said that “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.”

In Strieff, there was no question that but for the initial illegality, the police would not have found the contraband. Instead of focusing on the degree of attenuation, however, Justice Thomas’ majority opinion simply decides whether the existence of a warrant, by itself, is attenuation. In finding that it is, the opinion opens a veritable Pandora’s box of policing overreaches.

No one is more attuned to this than Justice Sotomayor, who pens an instant classic dissent in which she chides the majority for its simplistic thinking and its disguising the evisceration of Fourth Amendment protections with the cloth of the moral righteousness of the good-faith inquiry of the police officer.

While Justice Sotomayor’s dissent is breathtaking in its honesty, we must be careful not to fetishize it while neglecting the real impact that this opinion will have on the lives of everyday Americans. Americans who are stopped differently based on the color of their skin. Americans who, because of their race, are subjected to more frequent police searches despite being less likely to carry contraband.

Impact on Racial Profiling

This is how policing will work post-Strieff: police will stop individuals they deem suspicious, with or without cause. They will search them and inquire into the existence of warrants. If they search and nothing turns up, everyone goes on their way, no one any wiser. If something does turn up, then their illegal stop has reaped its benefit and the arrest and search will be upheld under Strieff.

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.

Those stops where “nothing happens” happen routinely and they happen most frequently to minorities. For instance, of the roughly 260,000 New Yorkers stopped by police between 2013-2015, roughly 86% of them were innocent of any wrongdoing. Of those stopped and frisked, more than half were African American, a third were Latino and the rest white. Between 2001 and 2013, 51% of New York City’s population over age 16 was black or Hispanic. Yet during that period, 82% of those arrested for misdemeanors were black or Hispanic.

In Boston, African-Americans comprised 63% of those betwwen 2007 and 2010 observed, stopped, interrogated, frisked, or searched without making an arrest although they made up 24% of the city’s population.

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 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.

The Supreme Court has made a concerted effort to gut the exclusionary rule. There’s no suppression if the search is based on a reasonable mistake of law, or based on the officer’s negligence, or based on a “pretextual stop“, or merely if substantial social costs exist to skip exclusion.

Now, evidence need not be suppressed even if it came about as a result of a stop completely devoid of any suspicion of wrongdoing. By continually restricting the application of the Fourth Amendment, the Supreme Court is making it difficult for all of us to breathe.

[See also: Orin Kerr at SCOTUSBlog has a detailed criticism of the opinion.]

Recognizing and correcting racial biases in traffic stops

One of the things I touched on in my post about implicit racial biases was that they were distinct from the explicit racial discrimination seen in the criminal justice system. As an example of racial discrimination that has been pushed to the forefront, I mentioned the disparity in traffic stops.

A month or so ago, CT released a report on racial profiling in traffic stops. TrendCT, a CT Mirror site, has done a tremendous job of breaking down the data and providing valuable insight into how Connecticut police stop motorists, why, and what their racial breakup is.

The greatest source of tension in the CJS has long been interactions between police – usually white – and them minority populations they are charged with protecting and serving. In my post on the 50th anniversary of Miranda (and on WNPR’s Where We Live), I mention the history of the deep south in the 1930s, leading up to Miranda in 1966 and how white deputies beat confessions out of black suspects.

This persists today, but in a different form. The distrust exists because minorities perceive police treating them differently. This leads to more frequent arrests, more convictions and harsher treatment by judges and prosecutors.

My admonitions to the defense bar apply to police as well: if we are to increase trust in the police and make the justice system more fair, we need to question why we make disproportionate stops of minorities and how we treat them after they are stopped.

Implicit racial biases are the cracks in the criminal justice system

Just this week, in a case reversing a death sentence because of a judicial conflict of interest, Justice Kennedy wrote that “[b]ias is easy to attribute to others and difficult to  discern in oneself.”

Our country, in the midst of its ongoing national discussion on racial disparity, inequality and bias in the justice system has taken noticeable steps in attributing bias to others. There is no dearth of studies and reports pointing out the iniquities of justice in America: black and minority defendants are 30% more likely than whites to go to prison for the same crimes, for instance.1 in 3 people arrested for drug crimes are black, even though drug usage rates don’t vary widely. These inequalities came to light most harshly through the incidents in Ferguson and New York City.

This disproportionate treatment of minorities in policing continues in the face of contrary evidence. For instance, when stopping cars in Ferguson, blacks were 3.5 times more likely to be pulled over. When stopped, blacks are searched at a higher rate than whites. However, when searched, blacks are less likely to have contraband or weapons on them than whites. Yet, blacks are arrested at a higher rate than their white counterparts. This disparity is not limited to Ferguson, but can be found countrywide, including the “stop and frisk” policies of New York City and the idyllic suburbs of Connecticut.

Studies have also recognized the cumulative impact of racial bias in policing on sentences and further downstream consequences: being arrested more frequently leads to more frequent convictions and that leads to longer criminal records which leads to lengthier sentences, which coupled with a distinct lack of rehabilitative services, leads to higher recidivism. For the same or similar crimes, whites aren’t caught in this toxic dead end loop.

Even for first time offenders, blacks are more likely to get higher sentences than whites. It is no secret that in the criminal justice system, there is a race/gender hierarchy: white women are treated most favorably, followed by minority women, then white men and then there’s a significant gap until we get to the minority men.

There is no “other”

To say, however, that the bias in the racial justice system exists in the “other” is to perpetuate a lie. The system isn’t a sentient machine, chugging along in its own, even thought it may feel so at many times. The system is made up of thousands upon thousands of individuals, most well-meaning and hard-working. Police officers aren’t inherently evil individuals; the judicial branch isn’t a kangaroo court; prosecutors aren’t all lying, cheating and dishonest; public defenders aren’t universally overworked and incompetent.

In fact, most when polled individually would attest to the nobility of their function and the sanctity of their duty. They all believe that they are doing justice – for whom, remains in dispute, but justice nonetheless.

So how does a collective group of mostly well meaning individuals produce such offensive and disproportionate results? The answer, many believe, is that even the best of us are victim to implicit biases.

The idea of implicit bias is that we are subconsciously altering our interactions with other people based on preconceived notions that we are, obviously, unaware of. This is not a case of alleging overt racism in the criminal justice system, which the country has become acutely aware of. This is the other kind: the well-meaning kind.

An Inability to Relate

While the vast majority of defendants in criminal courts are black and Hispanic, the legal profession is overwhelmingly white. Judges are predominantly white. Prosecutors are overwhelmingly white and public defender offices have large white majorities.

The best of us – myself, a minority, included – are affected (or can be) in some way, major or minor, by the stereotypes that our society and pop culture perpetuate. We don’t do this intentionally or knowingly, but we all are the products of our experiences and upbringing and for the most part they vary widely from those of our clients.

Judges who have been raised in white suburbs and attended prestigious law schools and worked in fancy corporate law firms cannot, as much as they try, to understand the circumstances that led the 17 year old black youth with a firearm to stand in front of them. Their sentencing will naturally be colored by their own life experiences and their own beliefs about others’ motivations.

When faced with an individual who looks like them, who has lived the life they have, judges and prosecutors are more likely to find common ground and empathize with the defendant’s predicament. There is no greater example of this than the recent Stanford sexual assault case. While the 6-month sentence for raping an unconscious young woman strikes many as unconscionable, when you compare the judge to the defendant, you get an insight into the rationale. Both the judge and the defendant attended Stanford. Both of them played “suburban” sports: lacrosse and swimming. When the defendant Turner stood in front of the judge, it was easy for the judge to see himself in the young man. It was easy for the judge to sympathize and understand his predicament, because, but for the grace of God…

Yet when that judge is faced with a black youth from an underprivileged background, more often than not he doesn’t have that common ground. It’s all too see for a judge see only the demographic standing before him, not the individual. Falling prey to these biases is how we come to disparate sentences.

The Defense is not Immune

While a significant amount of research on bias focuses on police, judges and prosecutors, it would be foolish to assume that defense attorneys are immune from its effects. Defense attorneys are after all, contrary to popular belief, people. As people, defense attorneys are subject to the same pitfalls as others. But as stewards of Constitutional rights and guardians of individual and individuals’ liberty, permitting implicit biases to affect representation of the accused is especially dangerous. For instance, a study of death penalty lawyers found that they, too, had the same biases as the general population: associating white with good and black with bad.

Recognizing these biases within the defense community and addressing them is critical. Some are asking whether defense attorneys spend less time on black clients. Jeff Adachi, the inimitable public defender of San Francisco, penned a powerful column in the Washington Post, describing his own journey from disbeliever to proponent of implicit bias recognition and training in the defense community.

When a defense attorney is confronted with a client to whom he cannot relate, how is his assessment of that client’s defenses and explanations altered? Do defense attorneys recommend higher sentences because they harbor the same biases of minorities’ guilt? Is there a failure to investigate cases involving minorities because defense attorneys are resigned to their eventual conviction? Do defense attorneys recommend pleas and dispositions to minorities that they wouldn’t to a Stamford swimmer? Do defense attorneys work harder for white clients in order to preserve their better chances at a more successful life and give in to their biased belief in the inevitability of a minority defendant acquiring a felony conviction?

Adachi’s column and the growing body of research in this area aren’t meant to castigate any particular individual or to raise racial bias allegations. They are, however, extremely useful as a gently reminder to all of us that perhaps we need to try harder to recognize that we may unknowingly be treating clients differently based on their race or gender.

A conversation about implicit bias is a difficult conversation; it is a subtle difference away from labeling oneself as racist. This conversation, however, is critical: it allows us to recognize and acknowledge the existence of these biases that would otherwise continue to operate and subconsciously affect our behavior. Admitting that we are subject to these biases allows us to correct for their negative impacts.

Recognizing these biases in ourselves allows us to honestly point them out in others – judges, jurors and prosecutors – and allows us to have the real honest dialogue that will hopefully bring them on board with acknowledging that the entire justice system is skewed and will remain so unless we examine ourselves and the way we treat those who are accused of crimes.

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This post originally appeared on NAPD.

Miranda, you’re getting old

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford one, one will be provided for you.

These 50 or so odd words have entered and affixed themselves into our collective consciousness. There isn’t a set of phrases more ubiquitous and well-known in modern American culture than these so-called “Miranda” warnings. The case that spawned them – Miranda v. Arizona – turns 50 today.

As someone who moved to this country 16 years ago, pop culture taught me these warnings before I’d even learned about the United States Supreme Court and this Miranda decision. Suspect after suspect getting handcuffed by cops, getting pushed into squad cars, with the recitation of the rights fading in over the background music. This is the indelible image of the police procedural in America.

The problem with anything so ingrained in popular culture is that a lot of people know what the warnings are but they don’t understand why. Many view them as pesky “technicalities” that let the “bad guys” get away. They’re just words standing in the way of the Government performing its law enforcement function.

The warnings, of course, are more than words. They are, according to Chief Justice Warren, the “restraints society must observe.” A society that, at the time of the founding, had great experience with the injustices of coerced confessions. As the supreme court wrote in 1896 in Brown v. Walker:

While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition.

The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand.

But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.

A society which, at the time of the Miranda decision, had dealt with cases like Brown v. Mississippi in which a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, who was black and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released and he returned with some difficulty to his home, suffering intense pain and agony.

The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the State of Alabama; and while on the way, in that State, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

And so the Miranda warnings were born: not as an opportunity to give the guilty a chance to avoid conviction, but to protect each and every one of us, regardless of guilt or innocence. The warnings, of course, don’t create the rights – they give voice to them. They remind the accuser and the accused that the Constitution protects us all: it protects our absolute right to not incriminate ourselves. It holds that right firm against any tactics that the government may use to bend and overbear our will.

The constitutional foundation underlying Miranda and the privilege against self-incrimination is the respect a government—state or federal— must accord to the dignity and integrity of its citizens.

Miranda, of course, isn’t about protecting criminal defendants and helping the guilty get away with crimes. It is about our collective responsibility in the legal profession to ensure that the rights of every resident of this country are zealously and jealously guarded and protected.

Testing the boundaries of Miranda isn’t limited to whether a defendant gave a confession or not, but rather the circumstances under which such a confession was obtained. Sadly, the news today is littered with stories of people falsely confessing to crimes they didn’t commit and spending decades in prison. And these confessions came about not by force or threat or violence, but by subtle psychological pressures and the desire to please figures of authority.

Going forward, the challenges for judges and lawyers are not only interpreting the effects of various circumstances on the voluntariness of confessions, but also resisting temptation to continue to limit the application of Miranda. Our courts have done a remarkable job of carving out exceptions to Miranda and finding ways to negate its application: whether it be through the dubious parameters of the “public safety exception” or by unrealistically putting the burden on the defendant to unequivocally invoke his right to silence by saying that out loud.

Courst also will have to grapple with its application to emerging technologies. Luddites excepted, most people have smartphones that allow one to lock or unlock using a fingerprint. Courts across the country have started to grapple with the question of whether police can require a suspect to unlock their phones using their fingerprints. Some have said yes, some have said no. How does this square with the protections of the principles enunciated in Miranda? If Miranda was to ensure that no statement was given unless entirely voluntary, then opening or unlocking a phone to give police access to incriminating evidence falls within that realm.

If Miranda’s famous words are to continue to have meaning, they must mean that each and every one of us has the absolute right to remain silent. If our courts refuse to apply Miranda with such strictness, then all we will be left with is a pop culture relic.

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N.B.: After the Supreme Court reversed his conviction, Miranda was retried. This time, they didn’t use his confession, but rather the testimony of a woman who claimed he confessed to her. He was convicted and sentenced to 20-30 years in jail. He got out on parole and made a small living autographing police officers’ “Miranda cards.” One day he got into a fight at a bar and was stabbed to death. The suspect in his case was Mirandized and unlike Ernesto Miranda, he invoked his privilege and did not give a statement. Lack of evidence led to the charges against that individual being dropped.