Crime Control vs. Expanding Police Power: The Supreme Court’s decision in Utah v. Strieff

9780700622573The  Supreme Court’s recently ended term only had a few search and seizure cases, but the decision in Utah v. Strieff provides evidence of the continuing power of the crime control narrative on the Court, and involves one of the central issues explored in The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy, namely, the evolution or devolution of the exclusionary rule in a jurisprudence of crime control.  The case openly forgives police misconduct, by exaggerating the social costs of excluding evidence, and creating yet another rationale for permitting illegal police activity to go unchallenged.

In this case, Edward Strieff was subject to what the lower courts conceded was an illegal Terry stop, lacking reasonable suspicion. After the stop, the officer learned that Strieff had an outstanding warrant for his arrest.  Strieff was arrested and searched incident to that arrest, and incriminating evidence was found.  The question is whether that evidence is tainted by the illegality of the Terry stop.  Does the “fruit of the poisonous tree” doctrine apply, or does the intervening act of discovering the existence of a warrant preclude the use of the exclusionary rule.

In 5-3 decision, Justice Thomas held that the existence of the warrant was sufficient to “break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person.”  Justice Sotomayor wrote a stinging dissent, exposing how the Court was diminishing Fourth Amendment rights.    Her words are worth quoting at length:

“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.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. … 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.”
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.” 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.” 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. 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.”

While the Court in Strieff makes concessions for the need for police discretion to protect public safety, Justice Sotomayor really illustrates what is at stake for the future.  Allowing an illegal stop to stand just because of the happy accident of the existence of an outstanding warrant rewards police misconduct, rather than deterring it.  What this case does is demonstrate that the jurisprudence of crime control remains deeply embedded in the minds of many justices, and the majority of justices refuse to acknowledge, as Justice Sotomayor does, the threat that this approach presents for constitutional civil rights and liberties.   The Fourth Amendment is certainly still in flux, but the jurisprudence of crime control remains the dominant paradigm.

-Written by Craig Curtis and Michael Gizzi, authors of The Fourth Amendment in Flux

A Court Even More in Flux after the Death of Justice Scalia

9780700622573Justice Scalia had a heart attack and died shortly after The Fourth Amendment in Flux went to press.  Any preliminary votes he cast in conference are null and the Court is left with just eight justices until a new nominee is confirmed.  His death left the Court with a large number of pending cases the decision of which are affected in a significant way by his absence, including two undecided Fourth Amendment cases.

We argued in our book that Justice Scalia played a major role in the debates over the application of the Fourth Amendment.  In the Afterword that we wrote for the book after it went to press and which is available in the e-book edition as well as on the press’s web site we discuss some of the issues that will continue to put pressure on the Court and the ramifications of the departure of Justice Scalia including the future of the third party doctrine using a cell phone to track an individual’s location and the use by law enforcement of commercially collected meta-data.

The Fourth Amendment truly is in flux, and as we argue in our book, the last five years have seen significant shifts on the Court.  The 2016 presidential election remains critical for determining the direction that the Court will take on these, and other issues.  Will the jurisprudence of crime control continue to be challenged, or will it remain the primary paradigm for Fourth Amendment cases?  Learn more in The Fourth Amendment in Flux. 

–Written by Michael C. Gizzi and R. Craig Curtis, authors of The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy