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.]

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.

—–

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.

Foster v. Chatman and the necessity of peremptories

In 1986, the United States Supreme Court issued a groundbreaking decision, ruling that race could not be used as a factor in deciding who could be a juror in a criminal case.

In 1987, Timothy Foster was tried for capital murder, convicted by an all-white jury and sentenced to death.

In 2006, Foster’s lawyers make an Open Records request, asking for the prosecutors’ files. This is what they found:

If you can’t tell – or haven’t read any other stories about this – the prosecutors put a B next to each African-American and highlighted them in green.

Today, the United States Supreme Court, by a vote of 7-1, reversed Foster’s conviction, holding that the prosecutors’ tactics violated Batson. For a terrific breakdown of the lone dissenting vote and the increasingly passive-aggressive nature of SCOTUS, read this by Garrett Epps.

The decision is a condemnation of racial bias in jury selection – a practice that continues today – and perhaps a hint that some conservative members of the Court have dropped the pretense that racial bias in the criminal justice system is non-existent.

But while this decision points out all that is wrong with racial bias and tells us that it is unacceptable, it does nothing to provide any guidance how.

Many, including the inimitible Stephen Bright who represented Foster, have seized this opportunity to suggest one way to eliminate racial discrimination in jury selection:

“The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”

The idea behind Justice Marshall and Bright’s suggestion is that if there is no way for prosecutors to arbitrarily excuse people from jury service, then they can’t use that mechanism to arbitrarily excuse black people.

The idea has superficial appeal, but much like some other ideas for reforming the justice system, are counterproductive and downright dangerous when probed further.

As a practicing lawyer, peremptory challenges are a valuable if imperfect tool to weed out biased jurors who are smart enough to not divulge their biases. It allows both sides to decide that a particular individual, while giving the right answers, may not be sympathetic to their side and thus exercise a “challenge” to their suitability to be a juror.

Peremptories: imperfect but necessary

Obviously, nefarious and ill-meaning prosecutors have used this power to eliminate minorities and that is unacceptable. But prosecutors are also far more likely to be okay with picking the first 12 people that walk through the door. That’s because, as a society, we are far more deferential to the prosecution than the “criminals” who are accused of crimes. People are far more likely to be supportive of police and automatic believers in their veracity. People are far more likely to view defendants from urban settings more negatively.

People are also very unlikely to openly admit their biases in front of complete strangers. Jury selection – as it is permitted in most of the country – is extremely poorly equipped to uncover these biases. So lawyers are limited to several basic questions which are all poor clones of “can you be fair?” When a juror answers yes, despite every other fiber of their being giving off a signal that they absolutely will not be, there is nothing a lawyer can do but exercise that peremptory challenge and excuse them.

As any experienced trial lawyer will aver, even jurors who candidly admit their biases are routinely rehabilitated by the prosecutor or the judge and most are smart enough to take the obvious hints and bring their opinions back to the neutral middle. Without peremptories, a defendant would be stuck with an obviously biased juror who had the werewithal to follow the judge’s coaching that he would follow the judge’s coaching.

 

Fixing the problem of racial bias

Surprise, there’s no one paragraph solution to this problem. But the problem of racial bias is not limited to jury selection and any solution shouldn’t focus only on that. Prosecutors who engage in discriminatory selection don’t suddenly play fair during trial or during plea bargaining or during the signing of warrants. Bias during selection is indicative of bias throughout the process.

We need to tackle that – it’s a shift in mindset that is required in America. If we want to reduce bias, we need to hold prosecutors and judges accountable; appellate courts must make it less insurmountable for petitioners to prove bias and get relief; defense lawyers must not be afraid to challenge prosecutors and question their decisions; there must be greater diversity in the justice system, in prosecutor offices, public defender offices and on the bench.

We need our stewards of justice to realize that justice doesn’t mean winning – it means doing the right thing.

 

Utah v. Strieff and the importance of the exclusionary rule

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.”

State v. Brunetti.

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.

 

Inquiry into jurors’ racial animus

Generally speaking, deliberations of jurors are sacrosanct. Courts will not permit the parties to inquire of jurors their thought-processes and details of their deliberations. Under the Federal Constitution there is no exception for inquiry into whether any misconduct on a part of a juror impacted their verdict, thus rendering the decision unfair. A Coloroda man has asked the United States Supreme Court to change that and hold that the right to a fair trial is an exception to the so-called “no impeachment” rule of juror deliberations. (Here is his brief.) In his case, the allegation centered around racially charged statements made by a juror:

“I think he did it because he’s Mexican and Mexican men take whatever they want,” is one of several racially tinged statements attributed to the juror identified in court records by the initials H.C. In another comment, the juror is said to have cast doubt on an alibi provided by a Hispanic witness for Pena Rodriguez because the witness was “an illegal.” The witness testified that he was in the country legally.

Rodriguez argues that this juror’s racial bias violated his right to a fair trial and the trial court should have permitted inquiry into these comments and the effect the comments had on the verdict. SCOTUS will decide whether to take up this case.

Connecticut, however, already recognizes such an exception. Practice Book Section 42-33 provides:

Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror’s testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.

Further, our supreme court has clearly stated:

[A]n allegation that a juror is racially biased “strikes at the heart of the [defendant’s] right to a trial by an impartial jury and the right to equal protection.” State v. Brown, 232 Conn. 431, 453, 656 A.2d 997 (1995). In addition, public confidence in the fair administration of justice is undermined if such allegations are not thoroughly investigated and quashed. Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.

State v. Santiago, 245 Conn. 301, 335 (1998).

This makes a lot of sense. While we want to protect the jury and its deliberations, shielding it from outside influence and second-guessing based on dissatisfaction with its verdict, those same considerations require the ability to conduct some limited inquiry. The inquiry isn’t to find out why the jury voted a certain way, but rather to discover if its decision was motivated by something other than a consideration of the facts of that case.

If the defendant’s right to a fair trial and an impartial jury is to be taken seriously, then he must be given the tools to determine if the verdict in his case was impartial and fair. In Pena Rodriguez’s case, there seems to be a risk that the verdict was based on racial bias and if that’s the case, can it be said to rest solely on the facts and evidence presented to the jury?

Finality of and respect for the jury’s verdict are important considerations in the criminal justice system, but they should not be so inviolable as to render the defendant’s right to a fair trial impossible.

State v. Brown created the framework for inquiry into juror misconduct. In Brown, our supreme court exercised its supervisory authority over the administration of justice to hold that a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel.

Should the Supreme Court have defense attorneys?

Dara Lind at Vox wrote an important column on the lack of defense attorneys on the Supreme Court and what it means for the way they approach cases.