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.
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.]