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Canaries in the Coal Mine: A Dissent That Matters

  • July 2, 2016
  • Clayton Rice, Q.C.

On June 20, 2016, the Supreme Court of the United States released its split 5-3 ruling in Utah v Strieff, 579 US _ (2016) holding that evidence seized during an unlawful police stop is admissible at trial when an outstanding and unrelated arrest warrant is found after the stop. Here’s the story.

Det. Douglas Fackrell of the Salt Lake City Police Department was conducting intermittent surveillance of a house for suspected drug activity as a result of an anonymous tip. One of the visitors was Edward Strieff who was stopped by Det. Fackrell in the parking lot of a convenience store after leaving the house. Det. Fackrell asked for Strieff’s identification and he produced his state identification card. Det. Fackrell relayed the information to a police dispatcher who reported that Strieff had an outstanding arrest warrant for a traffic violation. Det. Frackell arrested Strieff, searched him incidental to the arrest and found a baggie of methamphetamine and drug paraphernalia.

Strieff moved to suppress the evidence arguing that it was inadmissible because it was derived from an unlawful investigatory stop. The prosecutor conceded that the detective lacked reasonable suspicion for the stop but argued that the evidence should be admitted because the valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the methamphetamine. The trial court agreed. Schrieff conditionally pleaded guilty to reduced charges reserving his right to appeal. The Utah Court of Appeals affirmed. The Utah Supreme Court then reversed and the Supreme Court of the United States granted certiorari to resolve the disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant.

Justice Clarence Thomas, writing the majority opinion, began with a review of the basic tenets of Fourth Amendment jurisprudence at, slip. op., pp. 4-5. I will condense them as follows:

  • The exclusionary rule encompasses both the primary evidence obtained as a direct result of an illegal search or seizure as well as evidence later discovered and found to be derivative of an illegality. This is the fruit of the poisoned tree doctrine. See: Segura v United States, 468 US 796, 804 (1984)
  • But the exclusionary rule is applicable only where its benefit, the deterrence of Fourth Amendment violations, outweighs its social costs. Suppression of evidence is the last resort – not the first impulse. See: Hudson v Maryland, 547 US 586, 591 (2006)
  • Three exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence: (1) the independent source doctrine allows the admission of evidence obtained in an unlawful search if the police independently acquired it from a separate source; (2) the inevitable discovery doctrine allows for the admission of evidence that would have been discovered without the unconstitutional source; and, (3) the attenuation doctrine permits the reception of evidence when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance so that the interest protected by the constitutional guarantee would not be served by suppression of the evidence obtained. See: Murray v United States, 487 US 533, 537 (1988); Nix v Williams, 467 US 431, 443-4 (1984); and, Hudson, supra, at p. 593.

The Segura court had suggested that the existence of a valid warrant favours finding that the connection between unlawful police conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint. In holding that Det. Fackrell was “at most negligent” Justice Thomas applied Segura this way at, slip. op., pp. 7-8:

“In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Shrieff. ‘A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.’ United States v. Leon, 468 U.S. 897, 920, n. 21 (1984)…Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Offficer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety. See Arizona v. Gant, 556 U.S. 332, 339 (2009) (explaining the permissible scope of searches incident to arrest).”

Justice Thomas then reached the penultimate conclusion at, slip. op., p. 9, that the outstanding arrest warrant was an intervening circumstance independent of the illegal stop. “The discovery of that warrant,” he wrote, “broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

Justice Sonia Sotomayor dissented. Justice Ruth Bader Ginsburg joined in three parts of the reasons and Justice Elena Kagan dissented separately. The court thus split along gender lines. Justice Sotomayor departed from the all male majority on the critical issue of intervening circumstance at, slip. op., pp. 4-5:

“…[T]he officer in this case discovered Strieff’s drugs by exploiting his own illegal conduct. The officer did not ask Strieff to volunteer his name only to find out, days later, that Strieff had a warrant against him. The officer illegally stopped Strieff and immediately ran a warrant check. The officer’s discovery of a warrant was not some intervening surprise that he could not have anticipated…The officer’s violation was also calculated to procure evidence. His sole reason for stopping Strieff, he acknowledged, was investigative – he wanted to discover whether drug activity was going on in the house Strieff had just exited.

The warrant check, in other words, was not an ‘intervening circumstance’ separating the stop from the search for drugs. It was part and parcel of the officer’s illegal ‘expedition for evidence in the hope that something might turn up.’ Brown, 422 U.S., at 605. Under our precedents, because the officer found Strieff’s drugs by exploiting his own constitutional violation, the drugs should be excluded.”

Justice Sotomayor was particularly critical of the majority for misapplying the rationale underpinning the Fourth Amendment – deterrence of unconstitutional searches – at, slip. op., p. 5: “To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence…This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.”

It is at the point where Justice Sotomayor begins the last of her four part dissent that Justice Gingburg no longer concurred. In an article titled Justice Sotomayor’s Ringing Dissent, published in The Atlantic edition of June 20, 2016, associate editor Matt Ford described what you are about to read as extraordinary for its breadth and intensity.

“Writing for myself, and drawing on my professional experiences, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name,” Justice Sotomayor began. As Mr. Ford observed, after noting how degrading a police search can be, she almost subliminally shifted her writing style to speak to us directly at, slip. op., pp. 10-2:

“This Court has allowed an officer to stop you for whatever reason he wants – so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction – even one that is minor, unrelated, or ambiguous.

The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may ask for your ‘consent’ to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand ‘helpless, perhaps facing a wall with [your] hands raised.’ 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.

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.”

Justice Sotomayor then turned to the racial dimension of police stops and unconstitutional searches. Against the backdrop of the watershed writings of W.E.B. Du Bois, The Souls of Black Folk (1903); James Baldwin, The Fire Next Time (1963); and, Ta-Nehisi Coates, Between The World And Me (2015) she said this in conclusion at, slip. op., pp. 11-2:

“The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children ‘the talk’ – instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.

We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

In an article titled Supreme Court Says Police May Use Evidence Found After Illegal Stops published in The New York Times edition of June 20, 2016, Adam Liptak quoted Professor Justin Driver of the University of Chicago Law School who said that Justice Sotomayor’s dissent indicates that the Black Lives Matter movement has made a difference at the Supreme Court – at least with one justice. But it is more than that. This is a dissent that stands on its own. It stands on its own because it matters. It matters because this kind of judicial writing is rare – reasoned in the mind, nurtured in the heart and carved in the soul.

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